Fighting City Hall - A David vs. Goliath Story In Harrisonburg, Virginia

 

Who says you can't fight City Hall! 

Well, in what became an epic battle, a Mt. Jackson "David" slayed an automated Goliath. This David is actually Scott of Mt. Jackson, Va. When Scott received a $100 speeding ticket in the mail, courtesy of an automated license plate reader, for driving his truck 44 mph in a 25 mph zone, he knew there was a problem. He hadn't driven that truck since last winter. So, rather than roll over, he rolled up his sleeves and went to work. Turns out, Scott and his father, who lives in nearby Basye, VA, are co-registrants of dad's truck. Dad drives the truck; Scott gets the ticket.

The plate reader statute, Code of Virginia § 46.2-882.1 (E) reads in pertinent part:

“In the prosecution for a vehicle speed violation in which a summons was issued by mail, prima facie evidence that the vehicle described in the summons issued pursuant to this section was operated in a manner constituting a vehicle speed violation, together with proof that the defendant was at the time of such violation the owner…of the vehicle, shall constitute in evidence a rebuttable presumption that such owner… of the vehicle was the person who committed the violation. Such presumption shall be rebutted if the owner… (i) files an affidavit by regular mail with the clerk of the general district court that he was not the operator of the vehicle at the time of the alleged violation and provides the name and address of the person who was operating the vehicle at the time of the alleged violation or (ii) testifies in open court under oath that he was not the operator of the vehicle at the time of the alleged violation and provides the name and address of the person who was operating the vehicle at the time of the alleged violation. ....” (Emphasis added)

In other words, the law presumes that you're guilty until you can prove your innocence. Either confess your sin and pony up $100 or offer up a suitable sacrifice in your stead. Scott chose option "C"; he took the camera cop to court, and won!

On October 9, 2024, in the Harrisonburg-Rockingham General District Court, Harrisonburg police Sgt. Westfall gave his testimony and presented his video evidence of Scott's supposed infraction. Then it was Scott's turn to cross-examine Sgt. Westfall. Scott barely finished his second question to Westfall when the Judge abruptly interrupted: "Stop! This proceeding is over. We're not going any further. I've heard enough. I'm dismissing this case."

Apparently, the Judge was eager to vindicate Scott's constitutional rights. Or, perhaps more likely, the Judge sought to prevent Scott from further exposing to the public the statute's constitutional infirmities.

Scott's questions: (1) How does the state prove ownership of the offending vehicle? Sgt. Westfall: We use a third party.

(2) Why was Scott ticketed but not his co-registrant father?
Sgt. Westfall: Scott’s name was listed first on the registration.

It was here that the Judge stopped the proceedings. Presumably, the astute Judge saw the writing on the wall.

First, Sgt. Westfall's testimony that a third party determines ownership of the offending vehicle constitutes textbook inadmissible heresy evidence, i.e., the testimony, in essence, was that, a guy (the "third party") told another guy (Sgt. Westfall) that Scott owns a truck.

Perhaps more problematic for the court was Sgt. Westfall's testimony that Scott, but not his co-registrant father, was ticketed because Scott's name appeared first on the registration. When the state presumes that a citizen has committed a traffic violation based solely on the order in which the citizen's name appears on a vehicle registration, such presumption is the very definition of arbitrary.

And the Judge's sudden halt to the proceedings prevented Scott from delving into other potentially unconstitutional aspects of the statute. For example, the statute provides that the accused motorist send a notarized affidavit to the city-contracted company that manages the city's traffic camera program attesting that the accused was not the driver who committed the infraction and then provide the name and address of the person who was driving. However, the accused may not know the identity of the driver who committed the infraction.(Edit: technically, the statute specifies the affidavit be sent to the Clerk [of the Court]. In practice in the City of Harrisonburg, they require you to send it to the speed camera vendor the City contracts with. If you try and send it to the Clerk, the clerk rejects it, mails it back to you, and instructs you to file it with the vendor. This is actually nearly impossible to know unless you actually go and read the statute itself because everything the City and Vendor provide a defendant tells them to send the affidavit to the vendor.) 

For example, Scott could not know on October 9, 2024, whether his father had, on June 21, 2024 (the day of the alleged infraction), permitted his wife, or someone else, to use the truck to go to the grocery store.

Sworn affidavit statements constitute testimony given under penalty of perjury. Scott cannot in an affidavit speculate about who may have been driving his father's truck months earlier. Yet, the statute provides that Scott perjure himself in an affidavit by pointing the finger at another driver--even when Scott cannot know who the driver was.

Surely a statute is unconstitutional when it requires or encourages a citizen to perjure themselves as a prerequisite for access to the court.

A hypothetical: Scott owns the truck and instructs his wife to exceed the speed limit when going to the grocery store. Scott receives a plate reader ticket. Must Scott then provide affidavit testimony against his spouse? Must he relinquish his rights against self-incrimination?

The offending statute, 46.2-882.1, applies to citizens statewide. But because violations of this statute are adjudicated in General District Courts which, unlike Circuit Courts, are not "courts of record" and thus do not require the presence of a court reporter, it may be impossible to review the adjudication of these cases in the district courts.

Both Scott and this writer are legal laymen; neither is an attorney and, therefore, cannot offer legal advice. But the district court Judge who abruptly halted the court proceedings and dismissed the state's case against Scott is an attorney. And the Judge knows what we know not.

by: Muhammad Couch