NEW YORK HAM TICKETED- Part II

This story illustrates a problem we have with some laws.  We sought to exclude ourselves, when we should have fought to keep this inane law from ever going on the books in the first place.

There is no legitimate justification for the "anti-scanner" laws on the books in several places.  None!  There are already severe penalties for using radio equipment in the commission of a crime.  There are already severe penalties for using radio equipment to interfere with law enforcement or public service.

The only justification for the "anti-scanner" law is to keep police activities secret from the public that they work FOR.  In other words, the only reason is to further a "secret police".

We just fought a war to topple a regime that relied on secret police... we do NOT need to establish such here!!

We should be fighting to eliminate all secret police laws, but especially ones such as this.  Our public service record gives unique credentials to wage such a fight.

Why can't we make that the next step???

 

To paraphrase:

'When scanners are outlawed, only outlaws will have scanners.'

I'm thankful for the U.S. Constitution as it relates to this case, in particular, Amendment VI which in part states, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial..." as I don't think I can survive much more of this thread.

 

With some trepidation, I would like to point out a possibility that has not been discussed in this or the previous thread.  That is the possible tie in to the "Homeland Security" fervor that has already taken away some of our civil liberties.  Could be that the Federal Government has already stepped in on this case and will not stand for any removal or modification of any law that they feel might impact security???  Mr Ashcroft and his cronies seem hell bent on making the most of the current situation in giving the government even more control over our lives.  

No, I am not anti-American nor do I take the current threats to our country lightly, but do feel that there might be a connection in this matter.  I hope I am wrong.  Taken to the extreme, anyone capable of transmitting information (Hams) could be perceived as a security threat.  I don't think any of us wants that to happen, which makes this case even more important, since it could be just a stepping stone in that direction.

I would like to hear other's comments on this.  By the way, I add my vote to the many who already have said "GET A LAWYER"

73 de
KC0PTO

 

I want to see this story re-created on "Ally McBeal" - as I understand the producers (aussie connections) used weird real-life court cases as their base material. This has been the most interesting read on QRZ for a long time. Have you negotiated film rights yet ?

It makes you wonder where things will go now that 'security' and terrorist measures have escalated globally, and a sea of legislation that circumvents rights... At least you won't be in Guantanamo.

 

Hey Jerry,

I read your posting with great interest.
Could you please give us a little synopsis as to what exactly happened?
Why were you called to the courts?
Could you please provide us with the exact reasons you were summoned?

Thanks in advance,



ve1he@amsat.org

 

</span><table border="0" align="center" width="95%" cellpadding="3" cellspacing="1"><tr><td>Quote (KD5PSH @ June 11 2003,11:18)</td></tr><tr><td id="QUOTE">Why don't you post the judges name and address and we can get a letter writing campaign going, including to the press. Also, a copy of the NY law. [/QUOTE]<span id='postcolor'>

Why would anyone want to start a letter-writing campaign against the judge?  He has shown himself to be favorably inclined to the defendant's position.  Why piss him off?  Did you read the original (in this thread) post?

</span><table border="0" align="center" width="95%" cellpadding="3" cellspacing="1"><tr><td>Quote </td></tr><tr><td id="QUOTE">
Imagine a judge on the bench so arrogant that he would not accept your copy of the law. Maybe it is time to sue the arrogant clown.
[/QUOTE]<span id='postcolor'>

The judge isn't going to argue with the defendant, and really is not allowed to discuss a case with a defendant outside of official court proceedings.  The judge is also going to refer to an officially-provided version of the statutes rather than a photocopy or printout from any defendant.  What would stop a defendant from altering the law to exclude his offense, giving a copy of his 'work' to the judge, and then demanding the judge use THAT version rather than what is provided by the State?  Use your noodle!

Evidently the defendant did not try, or was not able, to get the prosecutor to dismiss the charges.  The judge understands that the state has a case it is prosecuting, hence the advice to the defendant to get a lawyer.  Telling the defendant to please not guilty/innocent is a no-brainer... everyone pleads not guilty, even Scott Peterson, Bill Clinton, and O.J. Simpson.

There evidently is enough ambiguity in the law that the prosecutor feels justification for going ahead.  Remember, the law isn't about justice it's about applying a rule if it can be applied.  I hope the defendant gets a lawyer who understands enough about what's going on to be able to put up an effective defense.  My advice would be for the defendant to not use a public defender since most of these attorneys are either new to the practice of law, or haven't built a good enough reputation to enter private practice... the good public defender is a rare beast.  

Contact the ARRL and your section director and get a reference to a local attorney who understands ham radio!  How much money will it cost you if the state wins because you don't put on an effective defense, confiscates your radios, and fines you?

 

There is an FCC pre-emption that superscedes the New York law.  All you need is to 1.  Carry it with you in the car, 2. Show it to the officer, 3. Bring it to court.
The ARRL was VERY willing to help when I called them on this law, as I travel in NY quite often.
Free advice to all, worth every cent you paid for it.  Eliminate all emotion as you work through this problem.  Actions generated by anger, hate, ignorance and frustration will only be detrimental to your goal.
E-mail me if you want a copy of the law sent.(wa1gjf@arrl.net)

 

KC5GAX,I just ran a quick search for attorneys in the Biographies slot and came up with many in the NY/NJ areas and some are ARRL Counsel,I'd drop a few emails on them for friendly experienced counsel or possibly recommend you to a Rep that works your area

Attorney Biography Search results

73's, BILL  K2CHP  

 

and people wonder why I moved out of NY state!

 

It's amazing how many armchair attorneys there are on QRZ.com.  I'd venture that almost all of us reading and participating in this thread don't have a mosquito's brain's knowledge of criminal procedure or rules of evidence.  More amazing is the number of advocates of mass-mailing the judicial circuit.  The law is blind to mass-mailing, unless you're fancy to penning an amicus curiae brief.

Still more amazing is the volume of postings from doomsayers.

Many interpretations can be made about this situation, some accurate and some not-so-accurate.  Without all the facts, what we are reading in this thread is just the product of "guess-timation".

But, since everyone else is doing it , I'll throw my guess-timation into the cauldron and let it bubble.

This meeting with the judge sounds like an arraignment.  By entering a plea of "not guilty" the judge has ensured that you won't shoot yourself in the foot by pleading "nolo contendere" or other nonsense.  Cases aren't thrown out at arraignment, to my knowledge.

---

Here's the real question: when this case goes to trial do you request a bench trial or jury trial??  Convincing a judge of your innocence (based upon established statute law) might be easier than convincing a jury of one's peers who just might not know the difference between a ham radio and a ham sandwich.

"I am not an attorney".

That's why you need one!  

</span><table border="0" align="center" width="95%" cellpadding="3" cellspacing="1"><tr><td>Quote </td></tr><tr><td id="QUOTE">...no one really wins anything in a courtroom...[/QUOTE]<span id='postcolor'>
Being found innocent and reclaiming one's liberty is, at least in my humble opinion, very much a "win".

 

</span><table border="0" align="center" width="95%" cellpadding="3" cellspacing="1"><tr><td>Quote (MattBeer @ June 12 2003,23:21)</td></tr><tr><td id="QUOTE"></span><table border="0" align="center" width="95%" cellpadding="3" cellspacing="1"><tr><td>Quote (ww2s @ June 11 2003,19:21)</td></tr><tr><td id="QUOTE">EVERYONE,  This is hamfest season and FD is coming up.  

Let's all, at least, bring a page or two of these 2 threads with the URL here.  

The forum may grow with more posts, but also, we need support here and all hams are affected by this.

There's a link for printing the forum, it's a nice format, you can select, copy, and paste a little of it into a word processor, or even Write or Notepad, print a page or shrink and print and make 20 copies, leave around, hand out, whatever.  It's important enough to be the subject of the summer.  I'd say it's the least we can do, get more interest.  Email every ham you know.[/QUOTE]<span id='postcolor'>
NO!!!

This is NOT a topic to be spread like wildfire!!!  This is a legal issue IN PROCESS.  I guarantee you that if you get this thing pushed up to headlines status, the NY legal system will turn against the hams, particularly since some VERY insulting things have been said here about the officer, the judge, the legal system, etc.  

The NY law is VERY vague, this is NOT cut and dried.  The issues involved include states' rights, the trade-off between reasonable freedom from searching versus "homeland security" and so forth.  Do NOT turn this into a typical liberal "we WILL be heard!!!" rally - it is not that kind of subject.

Do everybody a favor and don't even TALK about this case.

MB[/QUOTE]<span id='postcolor'>
Boy, am I starting to detect a fear of Big Brother here?!?! "Don't do this, don't say that, don't post that, don't write that. Don't email them.." , "Or they will turn on us". Geesh, what the heck is going on that makes you guys so scared of a government that is supposedly run By the People For the People?
From the sound of it, you guys are cowaring in the cellar with your heads in the sand, telling us all to shut up or we will bring the wrath of some NY judge down on us? The judge is not going to spank us for Raising our voices in protest to this misuse of police power. He would be a fool to do so. Even if he did, he is a penny-annie local judge who wouldn't dare strike out against the public outcry just because he wants to be a tyrant. and even if he did, the Federal appeals court would blister his backside and embarrass the heck out of him.
Why are you so afraid of this Judge? Who gives a flying squirrel if he read this post!? He has ZERO legs to stand on if he were to retaliate as you say, to our protests. Boy living up in New York really must be a life of fear from the courts and crackheads. I wished that those of you who are trying to silence the protests would take a few steps back and just listen to what you are telling us. You are indicating to us that we must censor our beliefs because a judge or court clerk may be reading this post. How much power does the court have up there anyway?!
You should know enough to know that a local court cannot exert punative actions on an individual defendant because of something said by others on the internet. That is ridiculous. Especially when there is a federal law involved. These statments advising us to shut up about how stupid the trooper acted are silly.
Worse case Scenerio, The judge finds out that I called him a dork. So, what can he REALLY do about it? It didn't happen in his courtroom while he was presiding. He can't possibly turn on you or the HAM community because I called him a dork. Even if he did read this and he did throw a tantrum in his court room, he would still have to follow the Law or face dealing with a federal appeal or worse. If living in the NE US means losing your freedom of speech, I don't think I will ever plan to visit there again. God, I might criticize a DA's BMW and get whipped in the town square. Geesh.
Sounds pretty oppressive up there to me.

I believe we should all be able to write our representatives and anyone who will listen, and lodge our disapproval. This is Our Justice System and We have the power. If the Power of the People has been lost locally, (Shame on you for letting that happen), then there is no other recourse but to go to a Federal level.
Bulldog this judge until he is begging the DA to just drop it.
Call the media, call the arrl, call the FCC, Have a thousand HAMS show up in his courtroom on the day of the trail. Yes, that is how you properly, legally intimidate and influence a judge. And now there are way too many people watching this. This judge is going to have to be even more careful that he doesn't mess something up. I wouldn't get too paranoid about who is or is not reading this post.
But if I were the defendant, I would be very careful and not post anything here that might incriminate myself.
If anyone asks what happened the night of that ticket, I would from this point on, seek refuge under the Fifth Amendment. Because I do believe that unlike the rest of us, anything you, the defendant, say here might be used in the court.

 

Just a comment: Unless there is overwhelming evidence to support it, there really isn't such a thing as a court finding of "Innocent." It's either "GUILTY" or "NOT GUILTY." That way, the judicial/legal system is saying that insufficient evidence was provided to allow conviction, not neceassarily that the person didn't commit the offense. ( Case in point: O.J.) A finding of "Not Guilty " means "he MAY have done the deed, but we couldn't prove it, (or there were extenuating circumstances that were taken into account that precluded a guilty finding.)" Innocence would convey the fact that the person did NOT commit the offense, and most cases do not or can not determine that circumstance. Of course, these days, with DNA testing, in some cases, innocence can be determined, and a "guilty" verdict CAN be set aside.

 

</span><table border="0" align="center" width="95%" cellpadding="3" cellspacing="1"><tr><td>Quote (KD5PSH @ June 12 2003,10:18)</td></tr><tr><td id="QUOTE">Why don't you post the judges name and address and we can get a letter writing campaign going, including to the press. Also, a copy of the NY law.

<snip>[/QUOTE]<span id='postcolor'>
I'm not so sure that would be a good idea. It would be better if several hams in the NY area or a local club would get together with a lawyer and file a "friend of the court" brief.

Paul, N0JAA

 

</span><table border="0" align="center" width="95%" cellpadding="3" cellspacing="1"><tr><td>Quote (n0jaa @ June 16 2003,20:11)</td></tr><tr><td id="QUOTE"></span><table border="0" align="center" width="95%" cellpadding="3" cellspacing="1"><tr><td>Quote (KD5PSH @ June 12 2003,10:18)</td></tr><tr><td id="QUOTE">Why don't you post the judges name and address and we can get a letter writing campaign going, including to the press. Also, a copy of the NY law.

<snip>[/QUOTE]<span id='postcolor'>
I'm not so sure that would be a good idea.  It would be better if several hams in the NY area or a local club would get together with a lawyer and file a "friend of the court" brief.

Paul, N0JAA[/QUOTE]<span id='postcolor'>
An Amicus Curiae or Friend of the Court is a great idea.  However, the ARRL should file it and include how this law really doesn't stop criminals from using radios to evade police, but only serves to discourage honest, well-meaning hams from participating in essential public service and homeland security activities such as the communication support provided in the aftermath of 9/11.

Although I don't remember all of the specifics, hams were requested to assist by bringing mobile transceivers which could be quickly deployed in vehicles, etc.

Then, there's the FCC's Declaratory Ruling issued back in 1991.  PR91-36 essentially pre-empts state laws which are meant to discourage the installation and operation of amateur radio equipment in vehicles.

I'm sure there are many more examples to include, but just citing the non-amateur frequency operation of organizations that depend upon hams for assistance, such as DOD, via MARS and CAP.  And also FEMA, which, during emergencies utilizes MARS membership as liason.  And, oops, I forgot about the Coast Guard Auxiliary.  Many members that assist with communications are hams, and probably have gear in their vehicles capable of marine band operation.

Can NY afford to discourage mobile and hand held station participation in these services?

I'm sure that the ARRL could create a terrific Amicus Curiae brief which would take care of Richard's immediate problem and provide the basis for not only the judge's decision, but also to convince the NY legislature to fix the language in Section 397 once and for all.


Lee
W6EM

 

The obvious solution to Public Service "evesdropping" is to go back to using Morse Code for all PS traffic. It would be a "Secure" way for PS messages since there are so few "Amateur's" left that understand Morse Code and very, very few 7/11 and gas station bandits that are "code qualified". Morse would also be much cheaper than "encrypting" PS traffic and/or "banning" all "scanners".