Category Archives: Legal Commentary

Arrests and Complaints

If you have been issued a traffic ticket or charged with a misdemeanor in Illinois and appeared in court or failed to appear and had a bench warrant issued, chances are you have not been charged with an offense and have no duty to appear in court to answer the charges. If you have pleaded or were found guilty for a traffic infraction or misdemeanor then you probably pleaded to a nonexistent charge. If either is the case, I recommend you contact me. There may be a way to get your judgment voided since the court did not have jurisdiction in the first place. I have seen hundreds of traffic tickets, as well as a fair share of complaints and informations. I have yet to see a warrant issued by a judge and supported by affidavit, or an information signed and swore to by the State’s Attorney. Traffic tickets are not complaints and you have no obligation to appear in court for a traffic ticket.

I have written numerous times on the issue of defective charges issued by police and prosecutors in Illinois, particularly St. Clair County. I will walk through the lawful requirements for charging an offense and how the State either willfully or ignorantly files insufficient and unlawful charges against individuals. For there to be a lawful charge, there must first be jurisdiction. This article will deal with Constitutional issues as well as statutory requirements and appellate court opinions on the subject. I think you will find that if you have been charged with a traffic or misdemeanor offense, maybe even a felony, you have not been lawfully charged with an offense and have voluntarily appeared to answer for non-existent charges.

Before we even get to what the ‚“law‚ says, we must understand the basic protections afforded by the Constitutions. Let’s begin with the Fourth Amendment to the US Constitution:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and noWarrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (This means NO warrants, including bench warrants, traffic warrants, etc.)

Now we move on to Article I, Section 6 of the Illinois Constitution (Bill of Rights):

SECTION 6. SEARCHES, SEIZURES, PRIVACY AND INTERCEPTIONS

The people shall have the right to be secure in their persons, houses, papers and other possessions against unreasonable searches, seizures, invasions of privacy or interceptions of communications by eavesdropping devices or other means.‚ Nowarrant shall issue without probable cause,‚ supported by affidavit particularly describing the place to be searched and the persons or things to be seized. (This is substantially a recitation of the Fourth Amendment, except it specifies an affidavit as opposed to an oath. This may be a fine distinction, but an oath is given orally and affidavit is in writing. The Fourth Amendment provides for both whereas Illinois limits warrants to being supported by a written affidavit.

There are generally 3 ways to charge an offense; by complaint, information, and indictment. This is not to say that you cannot be arrested without them. It has been held that if a criminal offense is committed in the presence of a police officer or a private citizen they may make an arrest. Either a police officer or private citizen may make an arrest with a warrant. Only a police officer can make an arrest based on probable cause. Here is what the courts have said regarding these options in relation to the protections of the Constitutions:

This section of the Constitution has been many times construed by this court, and it has been uniformly held that‚ noperson may be arrested and held to answer a charge of crime other than on asworn complaint before a judge or justice of the peace, or an indictment returned by a grand jury duly sworn and impaneled, or by presentment of not less than two members of such grand jury, or by verified information of the state’s attorney or Attorney General in certain cases.People ex rel. v. Leinecke, 290 Ill. 560, 125 N.E. 513;People v. Clark, 280 Ill. 160, 117 N.E. 432;Housh v. People, 75 Ill. 487; also, Smith-Hurd Rev.St.1931, c. 38, ss 662, 664, 711, 721. The only exceptions to these requirements arise in cases where the arrest or seizure is‚ made by an officer in whose presence the crime is committed or who has reasonable ground for believing that the person arrested was implicated in the commission of a crime. (‚ People v. Caruso, 339 Ill. 258, 171 N.E. 128;People v. Swift, 319 Ill. 359, 150 N.E. 263;Lynn v. People, 170 Ill. 527, 48 N.E. 964;North v. People, 139 Ill. 81, 28 N.E. 966),

A Citizen has the power of arrest reflected in the Illinois Compiled Statutes:

(725 ILCS 5/107‚”˜3) (from Ch. 38, par. 107‚”˜3) Sec. 107‚”˜3. Arrest by private person. ‚ Any person may arrest another when he has reasonable grounds to believe that an offense other than an ordinance violation is being committed.‚ (Source: Laws 1963, p. 2836.)

(725 ILCS 5/107‚”˜9) (from Ch. 38, par. 107‚”˜9)‚  Sec. 107‚”˜9. Issuance of arrest warrant upon complaint. (e) The warrant shall be directed to all peace officers in the State. It shall be executed by the peace officer, or by a private person specially named therein, at any location within the geographic limitation for execution placed on the warrant. If no geographic limitation is placed on the warrant, then it may be executed anywhere in the State.

To this point, it is clear that both the US Constitution and Illinois Constitution state, as supported by the courts, that no arrest can be made without a warrant, and for there to be a warrant there must be a sworn complaint; except in cases where a police officer personally witnesses the crime or has probable cause, or when a private person reasonably believes an offense other than an ordinance violation is being committed. Pay attention to ‚“is being committed‚. This means the offense must be in progress and not a thing of the past or future. A private person cannot arrest someone because of what they did or are about to do. That is the extent of the power of arrest possessed by the State. Illinois takes this one step further, which is where I believe arrests by so-called “bench warrants” come into play. The statutes say:

(725 ILCS 5/107‚”˜2) (from Ch. 38, par. 107‚”˜2) Sec. 107‚”˜2. (1) Arrest by Peace Officer. A peace officer may arrest a person when: ‚ (a) He has a warrant commanding that such person be arrested; or(b) He has reasonable grounds to believe that a warrant for the person’s arrest has been issued in this State or in another jurisdiction;

Police do not know the law. They only do what they are told. If a police officer is handed a bench warrant he does not question whether the warrant has been lawfully issued pursuant to the Constitution. If he checks his computer and sees a notice about a bench warrant he does not review the warrant for conformity with the law. He does not review the warrant for the judge’s signature or whether there is a corresponding affidavit. He is operating on “reasonable grounds” that a warrant has been issued because of the bench warrant. This can be dangerous, because without a warrant there is no arrest, regardless of the police officer’s belief. People have a right to be secure in their persons, papers, and possessions and if unlawfully assaulted in this respect have a natural right to defend themselves and their property, even from police. I expound on this premise in‚ this article and will not revisit the specifics here.

Before going further, we must ask this question. If the law provides for arrests, are there any who are exempt from arrests? I know many believe police are exempt from arrests when in the performance of their duties, but are they? Let’s visit the statutes again where we find some guidance.

(725 ILCS 5/107‚”˜7) (from Ch. 38, par. 107‚”˜7) Sec. 107‚”˜7. Persons exempt from arrest. (a)‚ Electors shall, in all cases except treason, felony or breach of the peace, be privileged from arrest during their attendance at election, and in going to and returning from the same. (b)‚ Senators and representatives shall, in all cases, except treason, felony or breach of the peace, be privileged from arrest during the session of the General Assembly, and in going to and returning from the same. (c)‚ The militia shall in all cases, except treason, felony, or breach of the peace, be privileged from arrest during their attendance at musters and elections, and in going to and returning from the same. (d)‚ Judges, attorneys, clerks, sheriffs, and other court officers shall be privileged from arrest while attending court and while going to and returning from court.‚ (Source: Laws 1963, p. 2836.)

I fail to find anywhere in that section an exemption for police officers. It does specifically mention sheriffs, but police officers are municipal or state ‚ employees and not officers of the court. The statute even alludes to sheriffs being not exempt if they are not attending court or going to and from court. This means that if a police officer commits a crime in the presence of a private individual they may make an arrest of that police officer. This would include the police officer using excessive force or other crime committed under the pretense of effecting an arrest.

So now we know there can be no arrest without a warrant or unless a crime is committed in the presence of a police officer or other individual, or in cases where police have reasonable suspicion that a crime has been, is being, or will be committed. If there is a warrant, it must be sworn to and in writing.

The only other instance where an arrest or seizure is at all justifiable is where an offense is committed in the presence of the officer or person making the arrest, And in such case there must be a sworn complaint or indictment before trial to set the machinery of the law in motion.’ (Emphasis supplied.)‚ 280 Ill. at 166, 117 N.E. at 434.

The only exceptions to these requirements arise in cases where the arrest or seizure is made by an officer in whose presence the crime is committed or who has reasonable ground for believing that the person arrested was implicated in the commission of a crime. (‚ People v. Caruso, 339 Ill. 258, 171 N.E. 128;People v. Swift, 319 Ill. 359, 150 N.E. 263;Lynn v. People, 170 Ill. 527, 48 N.E. 964;North v. People, 139 Ill. 81, 28 N.E. 966), And even then‚ a sworn complaint or indictment must follow before the court can take jurisdiction.’

Arrest by warrant is‚ unlawful until complaint charging crime has been filed.‚ Housh v. People, 1874, 75 Ill. 487.

By the common law, and according to the holdings in many of the states, a private person may justify an arrest by showing that a felony had been actually committed and that he had reasonable grounds to suspect that the person arrested committed the felony. 2 Am. & Eng. Ency. of Law (2d Ed.) 885; 3 Cyc. 885, and authorities therein cited. By section 4 of division 6 of our Criminal Code (Hurd’s Rev. St. 1903, c. 38, ‚§ 342, p. 677), it is provided: ‚An arrest may be made by an officer or by a private person without warrant, for a criminal offense committed or attempted in his presence, and by an officer, when a criminal offense has in fact been committed and he has reasonable ground for believing that the person to be arrested has committed it.’ From the reading of this statute it would seem that there is pointed out a distinction between the power of a citizen to make an arrest and that of an officer. A citizen may arrest when an offense is committed or attempted to be committed in his presence. So, too, may an officer under the same circumstances. But an officer may also arrest where the criminal offense has in fact been committed and he has reasonable grounds for believing the person arrested has committed it. But this latter power is not extended to a citizen by the statute.‚ Enright v. Gibson, 219 Ill. 550, 76 N.E.689

There are, no doubt, cases which hold that private individuals may arrest on probable cause; but there are authorities which hold the contrary rule, and in the conflict of authority we are left free to adopt the rule which seems to be most consonant with reason and the public interest; and to prevent breaches of the peace, and even bloodshed, we think that a private individual should not be justified unless a crime had been committed and the person arrested shall be shown to be the guilty party.’ We think this case a clear announcement of the rule in this state that, before a private citizen can justify an arrest made by him, he must show not only that a crime has in fact been committed, but that the person arrested is guilty of the crime.‚ Enright v. Gibson, 219 Ill. 550, 76 N.E.689

Fact that complaint itself may not have stated facts supporting probable cause did not make arrest warrant invalid, where trial court examined complainant under oath and determined that probable cause existed. People v. Hayes, 1990, 151 Ill.Dec.348, 139 Ill.2d 89, 564 N.E.2d 803, certiorari denied 111 S.Ct. 1601, 449 U.S. 967, 113 L.Ed.2d 664. Criminal Law211(1); Criminal Law212

The court is saying that even if the complaint itself does not contain information to support probable cause, by the court examining the complainant under oath, it determined that probable cause was sufficient for the issuance of an arrest warrant. This illustrates the importance of the court examining the complainant or witness. It is not the written complaint which is ‚ important, but that there is a flesh-and-blood individual before the court swearing under oath and penalty of perjury that there has been a crime committed, and the complaint serves as the written instrument for the record which the court will refer to in prosecuting the crime.

Officer seeking arrest warrant is not required to present issuing judge any and all circumstances which may affect finding of probable cause. People v. Hothersall, App. 2 Dist.1981, 58 Ill.Dec. 891, 103 Ill.App.3d 183, 430 N.E.2d 1142. Criminal Law 211(3)

Complaints for arrest warrants, which complaints contained names of accused, offense charged, time and place of offense, and signature and oath of complainant, were sufficient under this paragraph. People v. Collins, App. 1 Dist.1979, 26 Ill.Dec.165, 70 Ill.App.3d 413, 387 N.E.2d 995. Criminal Law211(1)

Probable cause necessary for issuance of arrest warrant cannot be made out by mere conclusory statements in affidavit in support of warrant that probable cause exists. People v. Davis, App. 1 Dist.1974, 20 Ill.App.3d 948, 314 N.E.2d 723.Criminal Law 211(1)

Where arrest warrant was issued on basis of a complaint which merely stated that police officer had just and reasonable grounds to believe that defendant had sold a narcotic drug, warrant was defective under Const. 1870, Art. 2, ‚§ 6 (see, now, Const. Art. 1, ‚§ 6), and evidence obtained as a result of defendant’s arrest was inadmissible. People v. Waitts, 1967, 36 Ill.2d 467, 224 N.E.2d 257. Criminal Law 211(3); Criminal Law394.4(9)

Complaint which charged offense of disorderly conduct and which was verified before notary public and presented to court by complainant, who was thereupon examined under oath by court, was sufficient as basis for issuance of warrant of arrest. Village of Willowbrook v. Miller, ‚ App.1966, 72 Ill.App.2d 30, 217 N.E.2d 809. Criminal Law 211(1)

A complaint in writing subscribed and sworn to, containing a concise statement of the offense charged, the name of the person accused, and averring that the complainant has just and reasonable grounds to believe that the accused committed the offense, is sufficient. People v. United States Fidelity & Guaranty Co.,1925, 238 Ill.App. 112.

Illinois courts may issue an arrest warrant only if complaint shows that probable cause exists to believe proposed arrestee has committed crime in question. Keefer v. Leach, 1979, 597 P.2d 203, 198 Colo. 101. Criminal Law 217

This paragraph did not require that complaint or warrant articulate probable cause for arrest but rather that court, in making determination of probable cause for issuance of arrest warrant, examine complainant or any witness under oath. People v. Hooper, 1989, 142 Ill.Dec. 93, 133 Ill.2d 469, 552 N.E.2d 684, certiorari denied 111 S.Ct. 284, 498 U.S. 911, 112 L.Ed.2d 239. Criminal Law211(1); Criminal Law 212

For there to be a lawful arrest there must first be an arrest warrant supported by a sworn complaint, information, or indictment; or a police officer must have reasonable suspicion that a crime has been committed or he or a private individual must have witnessed the crime personally. For there to be a complaint or information, there must be a supporting affidavit or oath. Even if arrested by a police officer witnessing the offense there must be a sworn complaint or indictment supported by affidavit or oath. Regardless, in ALL CASES, there MUST BE A SWORN COMPLAINT SUPPORTED BY AFFIDAVIT OR OATH. If either of these is missing from a charge the court has NO jurisdiction and the charge cannot stand.

CHARGING AN OFFENSE

We also need to examine the ways an offense can be charged. These are complaint, information, and indictment. Let’s examine the requirements for each.

(725 ILCS 5/Art. 111 heading)

ARTICLE 111. CHARGING AN OFFENSE

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=072500050HTit%2E+IV&ActID=1966&ChapterID=54&SeqStart=19700000&SeqEnd=25100000

(725 ILCS 5/111‚”˜1) (from Ch. 38, par. 111‚”˜1)

Sec. 111‚”˜1. Methods of prosecution.

When authorized by law a prosecution may be commenced by:

(a) A complaint; [1]

(b) An information; [2]

(c) An indictment. [3]

(725 ILCS 5/111‚”˜2) (from Ch. 38, par. 111‚”˜2)

Sec. 111‚”˜2. Commencement of prosecutions.

(a) All prosecutions of felonies shall be by information or by indictment. No prosecution may be pursued by information unless a preliminary hearing has been held or waived in accordance with Section 109‚”˜3 and at that hearing probable cause to believe the defendant committed an offense was found, and the provisions of Section 109‚”˜3.1 of this Code have been complied with.

(b) All other prosecutions may be by indictment, information or complaint.

(d) Upon the filing of an information or indictment in open court, the court shall immediately issue a warrant for the arrest of each person charged with an offense directed to a peace officer or some other person specifically named commanding him to arrest such person.

(f) Where the prosecution of a felony is by information or complaint after preliminary hearing, or after a waiver of preliminary hearing in accordance with paragraph (a) of this Section, such prosecution may be for all offenses, arising from the same transaction or conduct of a defendant even though the complaint or complaints filed at the preliminary hearing charged only one or some of the offenses arising from that transaction or conduct.

(Source: P.A. 90‚”˜590, eff. 1‚”˜1‚”˜99.)

(725 ILCS 5/111‚”˜3) (from Ch. 38, par. 111‚”˜3)

Sec. 111‚”˜3. Form of charge.

(b) An indictment shall be signed by the foreman of the Grand Jury and an information shall be signed by the State’s Attorney and sworn to by him or another [4].

A complaint shall be sworn to and signed by the complainant [5];

provided, that when a peace officer observes the commission of a misdemeanor and is the complaining witness, the signing of the complaint by the peace officer is sufficient to charge the defendant with the commission of the offense [6],

and the complaint need not be sworn to if the officer signing the complaint certifies[7]

that the statements set forth in the complaint are true and correct and are subject to the penalties provided by law for false certification [8]

under Section 1‚”˜109 of the Code of Civil Procedure and perjury under Section 32‚”˜2 of the Criminal Code of 1961; [9]

and further provided , however, that when a citation is issued on a Uniform Traffic Ticket or Uniform Conservation Ticket (in a form prescribed by the Conference of Chief Circuit Judges and filed with the Supreme Court), the copy of such Uniform Ticket which is filed with the circuit court constitutes a complaint to which the defendant may plead [10],

unless he specifically requests that a verified complaint be filed [11].

[1]Complaint – 725 ILCS 5/102 9 “Complaint” means a verifiedwritten statement other than an information or an indictment, presented to a court, which charges the commission of an offense.

[2]Information – 725 ILCS 5/102 12 “Information” means a verifiedwritten statement signed by a State’s Attorney, and presented to a court, which charges the commission of an offense.

[3]Indictment – 725 ILCS 5/102 11 “Indictment” means a written statement, presented by the Grand Jury to a court, which charges the commission of an offense.‚

[4]There is a little confusion on this as to whether anyone can swear to an information signed by the State’s Attorney. I have seen informations sworn to by the police officer, but does ‚“another‚ mean ‚“anyone else‚? In this sense, ‚“another‚ means someone else in the State’s Attorney’s office, such as an Assistant State’s Attorney. Looking at footnote [5] you will see that for a complaint, the lowest form of charge there is, it must be signed and sworn to by the complainant. Why would a complaint not be signed by the complainant and sworn to by ‚“another‚? Because the person making the charge is the one subject to the penalties of perjury so they must sign and swear. With the State’s Attorney’s office, they are working under the same oath of office and extensions of the State’s Attorney. Therefore, duly appointed deputies of the State’s Attorney, Assistant State’s Attorneys, can swear as though it were the State’s Attorney himself. For other guidance on this, we look at another State, Florida, and its requirements. http://www.joffelaw.com/state-rules/3-140.html

(g) Signature, Oath, and Certification; Information. An information charging the commission of a felony shall be signed by the state attorney, or a designated assistant state attorney, under oath stating his or her good faith in instituting the prosecution and certifying that he or she has received testimony under oath from the material witness or witnesses for the offense. An information charging the commission of a misdemeanor shall be signed by the state attorney, or a designated assistant state attorney, under oath stating his or her good faith in instituting the prosecution. No objection to an information on the ground that it was not signed or verified, as herein provided, shall be entertained after the defendant pleads to the merits.

[5]As distinguished from an information, the complaint must be signed and sworn to by the complainant. There is no provision for a complaint being signed by the complainant and sworn to by another individual.

[6]Notice that it specifies the ‚“commission of a misdemeanor‚ and not a felony. It is saying that if the police officer is the complaining witness and directly observes the commission of a misdemeanor, his signature on the complaint is sufficient to charge the defendant with the commission of the offense. However, remember that a complaint must be sworn to. This statement is misleading, as it is referring to misdemeanors which are civil in nature, and not criminal. Read on.

[7]It goes on to say the complaint need not be sworn to if the officer certifies, which is not the same as verification. Certification is a method used in civil proceedings to show notice was served to parties. It is different from verification. ‚“Although statute provided that, whenever the Code of Civil Procedure requires a document to be sworn to or verified under oath, then verification under penalty of perjury is an acceptable substitute, the verification provided by statute was not a substitute for the affidavit required by ‚“date of mailing‚ rule, providing that service is proved, in case of service by mail, by certificate of the attorney, or affidavit of a person other than the attorney, who deposited the paper in the mail; statute allowed for verification by certification unless otherwise expressly provided by rule of the Supreme Court. People v. Tlatenchi, App. 1 Dist.2009, 330 Ill.Dec. 485, 391 Ill.App.3d 705, 909 N.E.2d 198, rehearing denied , appeal denied 336 Ill.Dec. 489, 234 Ill.2d 547, 920 N.E.2d 1079.‚

‚“By its express terms, statute governing verification by certification provides that, whenever the Code of Civil Procedure requires a document to be sworn to or verified under oath, then verification under penalty of perjury is an acceptable substitute, but statute does not indicate that such verification is an acceptable substitute when a statute, other than the Code of Civil Procedure, requires a document to be sworn to or verified under oath. People v. Tlatenchi, App. 1 Dist.2009, 330 Ill.Dec. 485, 391 Ill.App.3d 705, 909 N.E.2d 198, rehearing denied , appeal denied 336 Ill.Dec. 489, 234 Ill.2d 547, 920 N.E.2d 1079.‚

Notice how it refers to the Code of Civil Procedure. In the case cited last, it says that certification is not acceptable when a document is required to sworn to or verified under oath, as with a criminal complaint. Certification and verification are two different things, certification belonging to civil proceedings and verification being a requisite for criminal charges.

[8]Again, it is talking a false certification, which applies to civil matters.

[9]Section 1-109 of the Code of Civil Procedure found here http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=073500050HArt%2E+I&ActID=2017&ChapterID=56&SeqStart=100000&SeqEnd=1100000

states ‚“(735 ILCS 5/1‚”˜109) (from Ch. 110, par. 1‚”˜109)

Sec. 1‚”˜109. Verification by certification. Unless otherwise expressly provided by rule of the Supreme Court, whenever in this Code any complaint, petition, answer, reply, bill of particulars, answer to interrogatories, affidavit, return or proof of service, or other document or pleading filed in any court of this State is required or permitted to be verified, or made, sworn to or verified under oath, such requirement or permission is hereby defined to include a certification of such pleading, affidavit or other document under penalty of perjury as provided in this Section.

Whenever any such pleading, affidavit or other document is so certified, the several matters stated shall be stated positively or upon information and belief only, according to the fact. The person or persons having knowledge of the matters stated in a pleading, affidavit or other document certified in accordance with this Section shall subscribe to a certification in substantially the following form: Under penalties as provided by law pursuant to Section 1‚”˜109 of the Code of Civil Procedure, the undersigned certifies that the statements set forth in this instrument are true and correct, except as to matters therein stated to be on information and belief and as to such matters the undersigned certifies as aforesaid that he verily believes the same to be true.

Any pleading, affidavit or other document certified in accordance with this Section may be used in the same manner and with the same force and effect as though subscribed and sworn to under oath.

Any person who makes a false statement, material to the issue or point in question, which he does not believe to be true, in any pleading, affidavit or other document certified by such person in accordance with this Section shall be guilty of a Class 3 felony.

(Source: P.A. 83‚”˜916.)‚

All that Section 1-109 does is lay down the use of certification in civil matters. It is the rule by which certification may be used, and only in accordance with Civil Procedure. Section 32-2 of the Criminal Code goes on to define what perjury is and the penalties for committing. It is found here http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=072000050HArt%2E+32&ActID=1876&ChapterID=53&SeqStart=74000000&SeqEnd=77100000

and states ‚“(720 ILCS 5/32‚”˜2) (from Ch. 38, par. 32‚”˜2)

Sec. 32‚”˜2. Perjury.

(a) A person commits perjury when, under oath or affirmation, in a proceeding or in any other matter where by law such oath or affirmation is required, he makes a false statement, material to the issue or point in question, which he does not believe to be true.

(b) Proof of Falsity.

An indictment or information for perjury alleging that the offender, under oath, has made contradictory statements, material to the issue or point in question, in the same or in different proceedings, where such oath or affirmation is required, need not specify which statement is false. At the trial, the prosecution need not establish which statement is false.

(c) Admission of Falsity.

Where the contradictory statements are made in the same continuous trial, an admission by the offender in that same continuous trial of the falsity of a contradictory statement shall bar prosecution therefor under any provisions of this Code.

(d) A person shall be exempt from prosecution under subsection (a) of this Section if he is a peace officer who uses a false or fictitious name in the enforcement of the criminal laws, and such use is approved in writing as provided in Section 10‚”˜1 of “The Liquor Control Act of 1934”, as amended, Section 5 of “An Act in relation to the use of an assumed name in the conduct or transaction of business in this State”, approved July 17, 1941, as amended, or Section 2605‚”˜200 of the Department of State Police Law (20 ILCS 2605/2605‚”˜200). However, this exemption shall not apply to testimony in judicial proceedings where the identity of the peace officer is material to the issue, and he is ordered by the court to disclose his identity.

(e) Sentence.

Perjury is a Class 3 felony.

(Source: P.A. 91‚”˜239, eff. 1‚”˜1‚”˜00.)‚

[10]This statement deals with traffic and conservation offenses, which are not crimes, but rather administrative or civil offenses. The form of the traffic or conservation offense is determined by the Illinois Supreme Court and the Conference of Chief Circuit Judges. For the purposes of this discussion, the applicability of this statement pertains to notice and charging of an offense. The Illinois Supreme Court website where this is discussed is here http://www.state.il.us/court/SupremeCourt/Rules/Art_V/ArtV.htm#Rule%20552

Under ‚“Notice to Appear‚ it states ‚“(e) Notice to Appear. In all cases in which a defendant is issued a Notice to Appear under section 107‚”œ12 of the Code of Criminal Procedure of 1963, as amended (725 ILCS 5/107‚”œ12), and fails to appear on the date set for appearance, or any date to which the case may be continued, the court may enter an ex parte judgment of conviction against an accused charged with an offense punishable by a fine only and in so doing shall assess fines, penalties and costs in an amount not to exceed equal to the cash bail required by this article. Payment received for fines, penalties, and costs assessed following the entry of an ex parte judgment shall be disbursed by the clerk pursuant to Rule 529. The clerk of the court shall notify the Secretary of State of the conviction pursuant to Rule 552 and of the unsatisfied judgment pursuant to section 6‚”œ306.6(a) of the Illinois Vehicle Code, as amended (625 ILCS 5/6‚”œ306.6(a)). In lieu of the foregoing procedure, a summons or warrant of arrest may be issued.

Committee Comments

(December 5, 2003)

Supreme Court Rule 556 (“Procedure if Defendant Fails to Appear”) delineates several procedures if the defendant fails to appear after depositing a driver’s license in lieu of bond, executes a written promise to comply, posts bond or issued a notice to appear.

The rule provided that the court may “enter an ex parte judgment of conviction against any accused charged with an offense punishable by a fine only and in so doing shall assess fines, penalties and costs in an amount not to exceed the cash bail required by this article.” Rule 556 does not detail the specific costs and penalties, or their amounts, in the entry of ex parte judgments. The clerk is then left with deciding which costs, fees and additional penalties (and their amounts) should be applied. This is currently being determined on a county by county basis.‚

Notice how this rule, pertaining to traffic and conservation offenses, deal with Civil Procedure. Nothing in this rule addresses criminal matters, and deals with offenses punishable by ‚“fine only‚, which is considered a ‚“petty offense‚. Also, notice the last few words of this section state that such a complaint constitutes a complaint to which the defendant may plead. This means the defendant, if willing to voluntarily plead to this type of complaint, waives all his rights to having a sworn complaint filed. Read carefully the next excerpt from an Illinois Appellate case where this very issue is addressed by the court.

‚“The charge against the defendant was initiated by an unverified ‚Illinois Uniform Traffic Ticket and Com-plaint.‘ It was in the form prescribed by Supreme Court Rule, par. C, relating to ‚Procedures in Traffic Cases, Quasi-Criminal Cases and Certain Misdemeanors.’ (S.H.A. ch. 110, par. 102.1; also see: Ill.Rev.Stat.1965, ch. 16, pars. 81-85 incl.) The defendant contends that the judgment should be reversed in that he had a right to be tried upon a verified complaint, and further, that the complaint was fatally defective since it did not adequately charge the offense of ‚drag racing.’

 

No pretrial motion was made by the defendant. He proceeded to trial without objection to the form of the complaint. After judgment, he filed a motion in arrest of judgment, asserting, among other things, that the complaint was not verified and that it failed to state a criminal or quasi-criminal offense within the statute under which he was charged.

 

It is readily apparent that the Supreme Court Rule governing procedures in traffic cases, quasi-criminal cases and certain misdemeanors, does not contemplate that the Illinois Uniform Traffic Ticket and Complaint be verified. The court, in People v. Harding, 34 Ill.2d 475, 216 N.E.2d 147 (1966), made an exhaustive analysis of its Rule and the statutes pertaining to the same subject matter. (Ill.Rev.Stat.1965, ch. 16, pars. 81-85 incl.; ch. 38, pars. 107-9, 107-11, 107-12 and par. 111-3(a)(b).) The court there pointed out that there is no constitutional provision requiring verification of the complaint which follows an arrest without a warrant. So far as the relevant constitutional provisions are concerned, they may require a sworn complaint as a prerequisite to the issuance of an arrest warrant, but they do not purport to lay down any jurisdictional prerequisites governing the institution of a criminal prosecution. The court stated at pages 482 and 483, 216 N.E.2d at pages 151 and 152

 

‚The Code of Criminal Procedure, enacted in 1963, retains the substance of the former statutory provi-sions with respect to the issuance of arrest warrants upon complaints and informations. (Ill.Rev.Stat.1965, chap. 38, par. 107-9.) But it also provides for the use of a summons, or a notice to appear, as ‚procedures for getting persons into court without the necessity and inconvenience of an immediate arrest.‘ (S.H.A., chap. 38, pars. 107-11; 107-12, Committee Comments.) Although, as we have held, there is no constitutional requirement that a complaint must be verified in order to sustain a criminal prosecution, the Code continues the statutory requirement of a sworn complaint. Ill.Rev.Stat.1965, chap. 38, par. 111-3(b).

 

‚In many decisions it has been held that a complaint, defective because it was not verified, or verified upon information and belief, did not affect the jurisdiction of the court and that the right to be charged by a properly verified information can be waived. (Citations.) So far as the objection of want of verification is concerned, therefore, the unverified traffic ticket complaint used in this case would have sufficed to give the court jurisdiction if the defendant had waived the objection by going to trial without raising it, or by a plea of guilty.

 

‚The adoption by this court of the rule which authorized the use of the unverified form of Illinois Uniform Traffic Ticket and Complaint was not intended to dispense with the statutory requirement of a verified complaint, and we hold that a defendant who does not waive, by plea of guilty or by proceeding to trial without objection, the defective verification of a complaint, is entitled to be prosecuted upon a com-plaint which states upon the oath of the complainant the facts constituting the offense charged.

 

The most that can be said for the requirement of verification of a traffic ticket and complaint, such as that before us, is that the Code of Criminal Procedure continues the requirement that a complaint be verified in order to sustain a criminal prosecution. (Ill.Rev.Stat.1965, ch. 38, par. 111-3(b).) The lack of verification, however, does not affect the jurisdiction of the court. The right to be charged by a properly verified complaint can be waived and, in fact, is waived unless the accused pleads guilty or proceeds to trial without an appropriate pretrial motion or objection.‚ ‚  People v. Harding, supra, 482, 483, 216 N.E.2d 147; Village of Willowbrook v. Miller, 72 Ill.App.2d 30, 34, 217 N.E.2d 809 (1966). The want of verification was not appropriately raised in the case at bar, and accordingly, we hold that the defendant has waived any right to object to the lack of verification.‚

That is pretty conclusive. There need not be a verified complaint for the court to have jurisdiction or to commence a prosecution because you may waive all your rights to a verified complaint and therefore submit to the jurisdiction. However, you have a right to demand a verified complaint, and if so, the court must have one before it can sustain a prosecution. Notice the statement in bold where the court says the traffic ticket is a procedure for getting persons into court without the necessity and inconvenience of an immediate arrest. They use the defective traffic ticket to get you into court and submit to jurisdiction without the necessity and inconvenience of there being a sworn criminal complaint.

[11]This statement summarized the discussion on complaints, particularly traffic and conservation offenses, where you may plead to the defective complaint unless you demand that a verified complaint be filed. This means that the court will have to require the complainant to swear to a complaint and have an arrest warrant issues, something they are not likely to do. This would require the police officer who issued the ticket to come before a judge with a written complaint that has been sworn to before someone authorized to administer oaths. This is what the court referred to as the ‚“necessity and inconvenience‚.

Notice how all but indictment requires a verified written statement. That is because the Grand Jury is sworn in when empaneled and all of their indictments derive from that oath, therefore, they do not need to issue a verified statement since they are already sworn in. However, both a complaint and an information must be supported by written sworn statements. Let’s look at what “verification” means.

‚“Verification‚, has been held by Courts of this State to mean‚ a written statement made under oath or affirmation before any officer empowered to administer oaths and which, for any willfully false or misleading statement made thereof, subjects the affiant to pains and penalty of perjury. Village of Willowbrook v. Miller, App.1966, 72 Ill.App.2d 30, 217 N.E.2d 809, People v. Siex, App.1942, 39 N.E.2d 84, 312 Ill.App. 657.

Now, what is this “officer empowered to administer oaths”? Fortunately, the answer is readily available for that as well.

The power to administer oaths derives from the Legislature and codified at 5 ILCS 5/255 et. seq. (Oaths and Affirmations Act)

While we’re digging, let’s look at who the Oaths and Affirmations Act embraces as an “officer empowered to administer oaths”.

(5 ILCS 255/2) (from Ch. 101, par. 2)‚ ‚ ‚  ‚ Sec. 2. Affidavits and depositions. All courts, and judges, and the clerks thereof, the county clerk, deputy county clerk, the Secretary of State, notaries public, and persons certified under the Illinois Certified Shorthand Reporters Act of 1984 may, in their respective districts, circuits, counties or jurisdictions, administer all oaths of office and all other oaths authorized or required of any officer or other person, and take affidavits and depositions concerning any matter or thing, process or proceeding commenced or to be commenced, or pending in any court or before them, or on any occasion wherein any affidavit or deposition is authorized or required by law to be taken.

Before we go on, the statute goes on to even define a judge:

(5 ILCS 255/7)‚ ‚ ‚  ‚ Sec. 7. Definition of judge. For the purposes of this Act, “judge” means (i) an incumbent judge of the Illinois Supreme, Appellate, or Circuit Court, whether elected or appointed, (ii) a retired judge of the Illinois Supreme, Appellate, or Circuit Court, and (iii) an incumbent or retired associate judge of the Illinois Circuit Court. The term “judge” does not include a judge who has been convicted of a felony or who has been removed from office by the Illinois Courts Commission.‚ (Source: P.A. 95‚”˜498, eff. 1‚”˜1‚”˜08.)

This does not include municipal judges, administrative law judges, or circuit court judges.

So, what is the significance of “verification”? Let’s look:

(5 ILCS 255/5) (from Ch. 101, par. 5)‚ ‚ ‚  ‚ Sec. 5. All oaths, affirmations, affidavits and depositions, administered or taken as provided in this act, shall subject any person who shall so swear or affirm willfully and falsely, in matter material to any issue or point in question, to the like pains and penalties as are inflicted by law on persons convicted of willful and corrupt perjury.‚ (Source: R.S. 1874, p. 725.)

Verification is required because if the person so swearing does so falsely they will be held to answer for willful and corrupt perjury. I believe this is why State’s Attorneys do not issue proper informations in many cases‚ because the charges are fraudulent to begin with. I believe most of them know the law either does not apply to most people in most cases, or they know they do not have knowledge of facts sufficient to charge an offense and therefore cannot swear to them. They rely upon people’s ignorance of the law and the intimidation of them being assailed by a system that relies upon imprisonment and threats for its survival.

Now I will examine the various types of ways an offense is charged and the legal requirements and defects as they are used today.

What is a charge?

(725 ILCS 5/102‚”˜8) (from Ch. 38, par. 102‚”˜8)‚ ‚ ‚  ‚ Sec. 102‚”˜8. “Charge”. ‚ “Charge” means a written statement presented to a court accusing a person of the commission of an offense and includes complaint, information and indictment.‚ (Source: Laws 1963, p. 2836.)

So a charge is a written statement in the form of a complaint, information, or indictment which charges an offense. Let’s examine what an “offense” is.

(725 ILCS 5/102‚”˜15) (from Ch. 38, par. 102‚”˜15) ‚ Sec. 102‚”˜15. “Offense”. “Offense” means a violation of any penal statute of this State.‚ (Source: P.A. 76‚”˜1796.)

Well, that seems clear enough, but what do they mean by “penal statute”? I do not find a definition for penal statute. There are various types of offenses, generally speaking. These include ordinance violation, petty offense, misdemeanor, and felony. What I do find is a definition for “penal institution”, which may shed light on what a penal statute is, since violators of penal statutes would be sentenced to a penal institution.

(720 ILCS 5/2‚”˜14) (from Ch. 38, par. 2‚”˜14) ‚ Sec. 2‚”˜14. “Penal institution”. ‚ “Penal institution” means a penitentiary, state farm, reformatory, prison, jail, house of correction, or other institution for the incarceration or custody of persons under sentence for offenses or awaiting trial or sentence for offenses.‚ (Source: Laws 1961, p. 1983.)

So it would appear that offenses only apply to those which include the possibility of someone being sentenced to serve time in some sort of jail or other form of confinement. For a good layman’s breakdown of the different types and their corresponding punishment I found the Illinois State Bar Association to be very helpful:

In Illinois, most traffic charges are categorized as either “petty” or “misdemeanor” offenses.

Petty offenses are those punishable by fine only. They include stop sign and red light violations, most speeding tickets, lane change violations and driving without insurance. Fines range from $1.00 to $1,000. Fines are either payable on the day assessed or on such later date as the court may direct.

Misdemeanors are divided into three (3) classes, referred to as Class A, B and C.

Class A is the most serious. It includes violations such as driving under the influence, speeding 40 or more miles over the posted speed limit, driving while license suspended or revoked, reckless driving or leaving the scene of an accident. The possible penalties for Class A misdemeanors are up to 364 days in jail and/or fines up to $2,500. Day for day good time credit applies to most misdemeanor jail sentences.

Class B misdemeanors, such as selling or providing a fraudulent driver’s license or permit, carry a possible penalty of up to six (6) months in jail and/or fines up to $1500.

Class C misdemeanors, such as drag racing, are punishable by jail up to thirty (30) days and/or fines up to $1,000.

Examining the above, it appears that those items listed under “petty offense” and which have a punishment by fine only are not really offenses. A penal institution is for receiving those who are subject to confinement for violating a penal statute and petty offenses are not included in that category. While on this subject, we need to also look at ordinance violations. Those are particularly interesting because they have been deemed to be “quasi-criminal” in nature.

While regarding‚ ordinance-violation proceedings as civil in form, this Court has traditionally characterized them‚ as quasi-criminal. City of Danville vs. Hartshorn, 53 Ill.2d 399, 292 N.E.2d 382 (1973)

Civil cases are of two kinds, those purely civil and those quasi criminal. A‚ quasi criminal case is not a criminal case but is a civil case, somewhat resembling in its nature a criminal case. That a quasi criminal offense is not a criminal offense as defined by the criminal code is, under the authorities, clear. Wiggins v. City, 78 Ill. 375, Tully v. Northfield, 6 Ill.App. 358

Quasi-Criminal Nature (See also Quasi and see the title Penalties) – The constitution of Illinois conferred upon a certain court jurisdiction in cases of a quasi-criminal nature. It was held that the phrase “quasi-criminal nature” was intended to embrace all offenses not crimes or misdemeanors, but which are in the nature of crimes, and which are punished, not by indictment, but by forfeitures and penalties. It includes all qui tam actions, prosecutions for bastardy, informations in the nature of quo warranto, and suits for the violations of ordinances. Wiggins v. Chicago, 68 Ill. 372

Quasi-Criminal Cases – The violation of an‚ ordinance is embraced in the phrase “of a quasi-criminal nature.” Wiggins v. Chicago, 68 Ill. 372

I do not mean to digress from the theme of this piece, but we are determining how the State charges offenses and in order to do that we must understand what offenses are. So, if the criminal code, criminal procedure…etc. apply only to “offenses” which are a violation of a “penal statute”. Therefore, to wrap up this discussion on ordinances we find:

Police can only arrest you with a warrant, if they witness a crime, or have reasonable grounds to believe an‚ offense is being, or has been, committed.

725 ILCS 5/107-2. Arrest by Peace Officer Arrest by Peace Officer. (1) A peace officer may arrest a person when:(c) He has reasonable grounds to believe that the person is committing or has committed anoffense.

Offenses are violations of the State’s penal statutes.

725 ILCS 5/102-15. ‚“Offense‚ ‚“Offense.‚ ‚“Offense‚ means a violation of any penal statute of this State.

Municipal ordinance violations are not offenses.

Municipal‚ ordinance violations do not fall within the definition of an ‚“offense‚ under either the Criminal Code or the Code of Criminal Procedure. City of Champaign v. Torres, 214 Ill.2d 234, 824 N.E.2d 624 (2005)

Therefore, you cannot be arrested for violating an ordinance without a warrant. Period. If you may only be arrested without a warrant for an offense, and ordinances are not offenses, you cannot be arrested for violating an ordinance without a warrant, even if in the presence of a police officer. However, there are procedures in place for prosecuting ordinance violations, and those are outlined next. There must be a summons or a warrant supported by affidavit, which means it must be sworn to by the person‚ alleging‚ the violation. If you are served notice by mail it must be done by certified mail, return receipt requested. The police may serve summons for an ordinance violation, but again, there must be a sworn affidavit before the summons can be issued.

65 ILCS 5/1-2-9. Summons or warrant; trial without delay⤠1-2-9. Except as provided in Section 1-2-9.1 of this Act, in all actions for the violation of any municipal ordinance, the first process shall be a summons or a warrant. A warrant for the arrest of an accused person may issue upon the affidavit of any person that an ordinance has been violated, and that the person making the complaint has reasonable grounds to believe that the party charged is guilty thereof. Every person arrested upon a warrant, without unnecessary delay, shall be taken before the proper officer for trial.

65 ILCS 5/1-2-9.1. Service by certified mail⤠1-2-9.1. Service by certified mail. In all actions for violation of any municipal ordinance where the fine would not be in excess of $750 and no jail term could be imposed, service of summons may be made by the city clerk by certified mail, return receipt requested, whether service is to be within or without the State.People ex rel Devine v. $30,700 U.S. Currency, 199 Ill. 2d 142, 766 N. E. 2d 1084 (2002)

65 ILCS 5/1-2-11. Sheriff; service of process; arrest; housing authority police(b) Police officers may serve summons for violations of ordinances occurring within their municipalities.725 ILCS 5/107-11.

When summons may be issued(c) The summons may be served in the same manner as the summons in a civil action, except that police officers may serve summons for violations of ordinances occurring within their municipalities.

65 ILCS 5/1-2-9. Summons or warrant; trial without delay⤠1-2-9. Except as provided in Section 1-2-9.1 of this Act, in all actions for the violation of any municipal ordinance, the first process shall be a summons or a warrant. A warrant for the arrest of an accused person may issue upon the affidavit of any person that an ordinance has been violated, and that the person making the complaint has reasonable grounds to believe that the party charged is guilty thereof. Every person arrested upon a warrant, without unnecessary delay, shall be taken before the proper officer for trial.

To close the book on ordinances, they are not complaints, informations, or indictments. For an illustrative case, read City of Danville v. Hartshorn.

While I am making fine legal distinctions, we need to examine some things that are not complaints, informations, or indictments. For instance, many people believe that traffic offenses are criminal offenses. Most of the preceding definitions come from the Illinois Criminal Code of 1963 and the Code of Criminal Procedure. However, traffic or vehicle offenses are not criminal ‚ nature, but civil or administrative infractions. The jurisdictions of each are different. Of course, we all believe we are in Illinois and Illinois is considered a State. However, the law goes on to define what a State is for the purposes of different parts of the statute. We are primarily dealing with criminal law in this article, but the courts often intermingle traffic offenses which make people believe they face criminal penalties. Depending on where you are in relation to “this State”, which may or may not mean Illinois, the jurisdiction or right of the State to even bring charges against someone, may differ. First we’ll look at the definition of “State” as it is used in the criminal code:

Quoting the Criminal Code of 1961 -‚ (720 ILCS 5/2‚”˜21) (from Ch. 38, par. 2‚”˜21) ‚ Sec. 2‚”˜21. “State”. ‚ “State” or “this State” means the State of Illinois, and all land and water in respect to which the State of Illinois has either exclusive or concurrent jurisdiction, and the air space above such land and water. “Other state” means any state or territory of the United States, the District of Columbia and the Commonwealth of Puerto Rico.‚ (Source: Laws 1961, p. 1983.)

Quoting the Illinois Motor Vehicle Code -‚ (625 ILCS 5/1‚”˜195) (from Ch. 95 1/2, par. 1‚”˜195) Sec. 1‚”˜195. State. ‚ A state, territory or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico or a province of the Dominion of Canada.‚ (Source: P.A. 76‚”˜1586.)

Look closely at the two definitions. Do not believe that they are interchangeable. The legislature defined them this way specifically for the statute to which they apply. When you deal with criminal law you are dealing with the actions of people. Crime is committed by individuals against individuals or their property. Corporations are also considered “persons” and can be held criminally responsible for certain act, but crimes are committed by people against people. The State of Illinois is formed by the people who are represented by the legislature. Crimes against people are reflected in the State of‚ Illinois Criminal Code. However, vehicular or traffic infractions cannot apply to the people generally as criminal offenses. The word State does not necessarily mean Illinois. There are commercial offenses which include commerce intrastate and interstate. The US Constitution gives Congress the power to regulate commerce. Therefore, I posit that traffic offenses apply to commercial activities under the regulations promulgated by Congress regarding interstate and intrastate commerce. That authority is reflected in the Vehicle Code as penalties imposed by the State, but not the State of Illinois. State, in that sense, is a commercial jurisdiction that co-exists with the common law jurisdiction of criminal statutes. The definition of State, as used in the Criminal Code actually excludes the definition of State used in the Vehicle Code. Vehicle Code offenses actually occur in the State known as the “other State” defined in the Criminal Code.

Summary of ordinance violations, petty offenses, and traffic violations – An arrest cannot be made for petty offenses or traffic violations. Arrests can be made for ordinance violations only if there is a sworn affidavit filed. Traffic tickets are ‚ not complaints, informations, or indictments since there is not a sworn complaint presented to a court and corresponding arrest warrant. I will touch on this in more detail as I get into the analysis of the various forms used to charge or allege offenses.

Complaint

What it is:‚ (725 ILCS 5/102‚”˜9) (from Ch. 38, par. 102‚”˜9) ‚ Sec. 102‚”˜9. “Complaint”. ‚ “Complaint” means a verified written statement other than an information or an indictment, presented to a court, which charges the commission of an offense.‚ (Source: Laws 1963, p. 2836.)

Next, we’ll look at what the Illinois statutes say about arrest by complaint. I’ll emphasize particular words and phrases in the statute and then post copies of a verified complaint and arrest warrant.

(725 ILCS 5/107‚”˜9) (from Ch. 38, par. 107‚”˜9) ‚ Sec. 107‚”˜9.

Issuance of arrest warrant upon complaint. (a) When a complaint‚ is presented to a court charging that an offense has been committed it‚ shallexamine upon oath or affirmation the complainant or any witnesses.

(b) The complaint shall be in writing and shall:

(1) State the name of the accused if known, and if ‚ not known the accused may be designated by any name or description by which he can be identified with reasonable certainty;

(2) State the offense with which the accused is charged;

(3) State the time and place of the offense as definitely as can be done by the complainant; and

(4) Be subscribed and sworn to by the complainant.

(c) A warrant‚ shall be issued by the court for the arrest of the person complained against if it appears from the contents of the complaint and the examination of the complainant or other witnesses, if any, that the person against whom the complaint was made has committed an offense.

(d) The warrant of arrest‚ shall:

(1) Be in writing;

(2) Specify the name, sex and birth date of the person to be arrested or if his name, sex or birth date is unknown, shall designate such person by any name or description by which he can be identified with reasonable certainty;

(3) Set forth the nature of the offense;

(4) State the date when issued and the municipality or county where issued;

(5)‚ Be signed by the judge of the court with the title of his office;

(6) Command that the person against whom the complaint was made be arrested and brought before the court issuing the warrant or if he is absent or unable to act before the nearest or most accessible court in the same county;

(7) Specify the amount of bail; and

(8) Specify any geographical limitation placed on the execution of the warrant, but such limitation shall not be expressed in mileage.

(e) The warrant shall be directed to all peace officers in the State. It shall be executed by the peace officer, or by a private person specially named therein, at any location within the geographic limitation for execution placed on the warrant. If no geographic limitation is placed on the warrant, then it may be executed anywhere in the State.

(f) The warrant may be issued electronically or electromagnetically by use of a facsimile transmission machine and any such warrant shall have the same validity as a written warrant.‚ (Source: P.A. 86‚”˜298; 87‚”˜523.)

First of all, notice the word “shall”. Shall, is a direction to the court. It is a command. It is not discretionary. The judge or whoever the command is being directed towards must do take that action as a requirement for the statute. A complaint is presented to a court charging an offense. That means something other than a petty offense or ordinance violation, punishable by fine only. Here is something interesting. It also states, “shall examine upon oath or affirmation the complainant or any witnesses.” This means the court must examine the complainant or any witness with them being either orally sworn in. The complaint itself must be in writing and the complainant must also be examined by the judge under oath or affirmation before issuing an arrest warrant.

Although an arrest warrant may be issued only upon a showing of probable cause, it does not necessarily follow that a demonstration of probable cause must be made in complaint upon which arrest warrant is issued; in issuing arrest warrant, judge is not bound by four corners of complaint, but may base a determination of probable cause upon his required examination of complainant or witnesses. People v. Collins,App. 1 Dist.1979, 26 Ill.Dec. 165, 70 Ill.App.3d 413, 387 N.E.2d 995. Criminal Law 217

What is being said here is that probable cause does not rest solely with the complaint. It is required that the judge examine the complainant or witness, and upon that testimony he may find probable cause. This is because not everyone may possess the faculties required to pen a proper complaint and what may be lacking in the complaint is supplemented by the testimony of the complainant.

In compliance with this paragraph, judge issuing arrest warrants properly examined complainant to determine probable cause prior to issuing warrants over his signature. People v. Collins, App. 1 Dist.1979, 26 Ill.Dec. 165, 70 Ill.App.3d 413, 387N.E.2d 995. Criminal Law217

Where complaint was signed by complainant and was acknowledged before notary public, who was not an associate circuit judge or magistrate, and after complaint was signed and sworn to, it was presented to associate circuit judge, who heard no testimony, and solely on basis of examination of complaint, ordered warrant of arrest to issue, warrant was properly quashed because of failure of associate circuit judge to examine complainant or other witnesses as required by this paragraph.People v. Krumery, App.1966, 74 Ill.App.2d 298, 220 N.E.2d 241. Criminal Law217

What is being said here is what illustrates the necessity for the judge to examine the complainant or witness. It is important to keep this in mind when making your complaint because if the judge does not examine the complainant or witness it will prove fatal to your case. I can envision a situation where a judge will sabotage a case by failing to examine the complainant or witness, as in what took place in the above case. I would recommend being adamant about the judge examining you or the witness to ensure no defect in the warrant ensues which would result in a dismissal.

Let’s review an alleged “verified complaint” and ensuing arrest warrant. This complaint is made out by the State’s Attorney and verified or sworn to by the State Police officer. The State’s Attorney does not sign the complaint, but rather stamps it. ‚ The warrant is likewise unlawful. The specified “offense” is “failure to appear or pay charge” when the complaint is for unlicensed driving. The warrant is not supported by the complaint. The defendant in this case was ticketed on July 29, 2010 and the verified complaint was not filed August 25, 2010 upon his filing a demand for a verified complaint. Until a complaint is filed and the complainant examined by a judge there can be no warrant and no jurisdiction. The warrant was not issued until September 14, 2010, and even then it was issued for a non-existent offense.

 

So what we have here is a defective complaint and defective warrant. The complaint has not been verified even though it is sworn to because of two things. It is signed by the State’s Attorney. A complaint is used by a complainant to charge an offense, not the State’s Attorney. The State’s Attorney uses an information. If the police officer signed the complaint then it would be proper, but he didn’t. Second, the affidavit below was sworn to by the officer, not the State’s Attorney. Only the person making the complaint can sign the affidavit. Since they are the one making the charge they also must be the one swearing to it. If you look at the signature if the State’s Attorney, you will also see it is a rubber stamp. There is no telling who actually signed, or stamped, this complaint. I also posit that the judge never examined the complainant as to the facts alleged in order to issue the warrant. The warrant which was issued is for a non-offense, failure to appear. The complaint is for unlicensed driving. How does a judge issue a warrant for an offense that does not appear on the complaint? This is an outright fraud and the court never acquired jurisdiction in this case. This, however, is not uncommon. It happens all the time to many people and they never look at the charging documents for defects like this because they do not know. They appear in court and enter pleas to charges that are not properly filed, thereby submitting to jurisdiction. They are undone by their own ignorance.

Now we’re going to look at an information. The difference between an information and a complaint is that a complaint is presented by someone other than the State, such as you or I. I disagree that police can sign as a complainant since they work for the State. Police should go to the State’s Attorney with the charges and the State’s Attorney then file an information. If a police officer would file a complaint then he must do so in writing and swear to it, as well as present it to a court to then be examined by the judge before issuing a warrant. An information is presented by a State’s Attorney, but it must also be sworn to by him and presented to a court before a warrant can be issued. Remember, without a warrant there is no jurisdiction. There is a distinction between a complaint and an information. What I will show you next is an information that looks remarkably like the previous complaint, only it is titled Information. Same rules apply to both, only the Information is presented by the State’s Attorney. Take a look and see if there is any difference aside from the caption.

I will be concluding this piece with an analysis of traffic tickets and Uniform Traffic Citation and Complaint. This has been discussed in-part above, but examples of requirements and common defects will be included.

We Entertain the Question: Are Police Constitutional?

Seton Hall Constitutional L.J. 2001, 685

ARE COPS CONSTITUTIONAL?

‚ ‚ Roger Roots*

ABSTRACT

http://www.constitution.org/lrev/roots/cops.htm

Police work is often lionized by jurists and scholars who claim to employ “textualist” and “originalist” methods of constitutional interpretation. Yet professional police were unknown to the United States in 1789, and first appeared in America almost a half-century after the Constitution’s ratification. The Framers contemplated law enforcement as the duty of mostly private citizens, along with a few constables and sheriffs who could be called upon when necessary. This article marshals extensive historical and legal evidence to show that modern policing is in many ways inconsistent with the original intent of America’s founding documents. The author argues that the growth of modern policing has substantially empowered the state in a way the Framers would regard as abhorrent to their foremost principles.
‚ 

PART I

INTRODUCTION

THE CONSTITUTIONAL TEXT

PRIVATE PROSECUTORS

LAW ENFORCEMENT AS A UNIVERSAL‚ DUTY

POLICE AS SOCIAL WORKERS

THE WAR ON CRIME

THE DEVELOPMENT OF DISTINCTIONS

RESISTING ARREST

THE SAFETY OF THE POLICE PROFESSION

PROFESSIONALISM?

DNA EVIDENCE ILLUSTRATES FALLIBILITY OF POLICE

COPS NOT COST-EFFECTIVE DETERRENT

PART II

POLICE AS A STANDING ARMY

THE SECOND AMENDMENT

THE THIRD AMENDMENT

THE RIGHT TO BE LEFT ALONE

THE FOURTH AMENDMENT

WARRANTS A FLOOR, NOT A CEILING

PRIVATE PERSONS AND THE FOURTH AMENDMENT

ORIGINALISTS CALL FOR CIVIL DAMAGES

DEVELOPMENT OF IMMUNITIES

THE LOSS OF PROBABLE CAUSE, AND THE ONSET OF PROBABLE SUSPICION

POLICE AND THE “AUTOMOBILE EXCEPTION”

ONE EXCEPTION: THE EXCLUSIONARY RULE?

THE FIFTH AMENDMENT

DUE PROCESS

ENTRAPMENT

CONCLUSION

PART I

INTRODUCTION

Uniformed police officers are the most visible element of America’s criminal justice system. Their numbers have grown exponentially over the past century and now stand at hundreds of thousands nationwide.1 Police expenses account for the largest segment of most municipal budgets and generally dwarf expenses for fire, trash, and sewer services.2 Neither casual observers nor learned authorities regard the sight of hundreds of armed, uniformed state agents on America’s roads and street corners as anything peculiar ‚” let alone invalid or unconstitutional.

Yet the dissident English colonists who framed the United States Constitution would have seen this modern ‘police state’ as alien to their foremost principles. Under the criminal justice model known to the Framers, professional police officers were unknown.3 The general public had broad law enforcement powers and only the executive functions of the law (e.g., the execution of writs, warrants and orders) were performed by constables or sheriffs (who might call upon members of the community for assistance).4 Initiation and investigation of criminal cases was the nearly exclusive province of private persons.

At the time of the Constitution’s ratification, the office of sheriff was an appointed position, and constables were either elected or drafted from the community to serve without pay.5 Most of their duties involved civil executions rather than criminal law enforcement. The courts of that period were venues for private litigation ‚” whether civil or criminal ‚” and the state was rarely a party. Professional police as we know them today originated in American cities during the second quarter of the nineteenth century, when municipal governments drafted citizens to maintain order.6 The role of these “nightly watch” officers gradually grew to encompass the catching of criminals, which had formerly been the responsibility of individual citizens.7

While this historical disconnect is widely known by criminal justice historians, rarely has it been juxtaposed against the Constitution and the Constitution’s imposed scheme of criminal justice.8 “Originalist” scholars of the Constitution have tended to be supportive, rather than critical of modern policing.9 This article will show, however, that modern policing violates the Framers’ most firmly held conceptions of criminal justice.

The modern police-driven model of law enforcement helps sustain a playing field that is fundamentally uneven for different players upon it. Modern police act as an army of assistants for state prosecutors and gather evidence solely with an eye toward the state’s interests. Police seal off crime scenes from the purview of defense investigators, act as witnesses of convenience for the state in courts of law, and instigate a substantial amount of criminal activity under the guise of crime fighting. Additionally, police enforce social class norms and act as tools of empowerment for favored interest groups to the disadvantage of others.10 Police are also a political force that constantly lobbies for increased state power and decreased constitutional liberty for American citizens.

THE CONSTITUTIONAL TEXT

The Constitution contains no explicit provisions for criminal law enforcement.11 Nor did the constitutions of any of the several states contain such provisions at the time of the Founding.12 Early constitutions enunciated the intention that law enforcement was a universal duty that each person owed to the community, rather than a power of the government.13 Founding-era constitutions addressed law enforcement from the standpoint of individual liberties and placed explicit barriers upon the state.14

PRIVATE PROSECUTORS

For decades before and after the Revolution, the adjudication of criminals in America was governed primarily by the rule of private prosecution: (1) victims of serious crimes approached a community grand jury, (2) the grand jury investigated the matter and issued an indictment only if it concluded that a crime should be charged, and (3) the victim himself or his representative (generally an attorney but sometimes a state attorney general) prosecuted the defendant before a petit jury of twelve men.15 Criminal actions were only a step away from civil actions ‚” the only material difference being that criminal claims ostensibly involved an interest of the public at large as well as the victim.16 Private prosecutors acted under authority of the people and in the name of the state ‚” but for their own vindication.17 The very term “prosecutor” meant criminal plaintiff and implied a private person.18 A government prosecutor was referred to as an attorney general and was a rare phenomenon in criminal cases at the time of the nation’s founding.19 When a private individual prosecuted an action in the name of the state, the attorney general was required to allow the prosecutor to use his name ‚” even if the attorney general himself did not approve of the action.20

Private prosecution meant that criminal cases were for the most part limited by the need of crime victims for vindication.21 Crime victims held the keys to a potential defendant’s fate and often negotiated the settlement of criminal cases.22 After a case was initiated in the name of the people, however, private prosecutors were prohibited from withdrawing the action pursuant to private agreement with the defendant.23 Court intervention was occasionally required to compel injured crime victims to appear against offenders in court and “not to make bargains to allow [defendants] to escape conviction, if they … repair the injury.”24

Grand jurors often acted as the detectives of the period. They conducted their investigations in the manner of neighborhood sleuths, dispersing throughout the community to question people about their knowledge of crimes.25 They could act on the testimony of one of their own members, or even on information known to grand jurors before the grand jury convened.26 They might never have contact with a government prosecutor or any other officer of the executive branch.27

Colonial grand juries also occasionally served an important law enforcement need by account of their sheer numbers. In the early 1700s, grand jurors were sometimes called upon to make arrests in cases where suspects were armed and in large numbers.28 A lone sheriff or deputy had reason to fear even approaching a large group “without danger of his life or having his bones broken.”29 When a sheriff was unable to execute a warrant or perform an execution, he could call upon a posse of citizens to assist him.30 The availability of the posse comitatus meant that a sheriffs resources were essentially unlimited.31

LAW ENFORCEMENT AS A UNIVERSAL DUTY

Law enforcement in the Founders’ time was a duty of every citizen.32 Citizens were expected to be armed and equipped to chase suspects on foot, on horse, or with wagon whenever summoned. And when called upon to enforce the laws of the state, citizens were to respond “not faintly and with lagging steps, but honestly and bravely and with whatever implements and facilities [were] convenient and at hand.”33 Any person could act in the capacity of a constable without being one,34 and when summoned by a law enforcement officer, a private person became a temporary member of the police department.35 The law also presumed that any person acting in his public capacity as an officer was rightfully appointed.36

Laws in virtually every state still require citizens to aid in capturing escaped prisoners, arresting criminal suspects, and executing legal process. The duty of citizens to enforce the law was and is a constitutional one. Many early state constitutions purported to bind citizens into a universal obligation to perform law enforcement functions, yet evinced no mention of any state power to carry out those same functions.37 But the law enforcement duties of the citizenry are now a long-forgotten remnant of the Framers’ era. By the 1960s, only twelve percent of the public claimed to have ever personally acted to combat crime.38

The Founders could not have envisioned ‘police’ officers as we know them today. The term “police” had a slightly different meaning at the time of the Founding.39 It was generally used as a verb and meant to watch over or monitor the public health and safety.40 In Louisiana, “police juries” were local governing bodies similar to county boards in other states.41 Only in the mid-nineteenth century did the term ‘police’ begin to take on the persona of a uniformed state law enforcer.42 The term first crept into Supreme Court jurisprudence even later.43

Prior to the 1850s, rugged individualism and self-reliance were the touchstones of American law, culture, and industry. Although a puritan cultural and legal ethic pervaded their society, Americans had great toleration for victimless misconduct.44 Traffic disputes were resolved through personal negotiation and common law tort principles, rather than driver licenses and armed police patrol.45 Agents of the state did not exist for the protection of the individual citizen. The night watch of early American cities concerned itself primarily with the danger of fire, and watchmen were often afraid to enter some of the most notorious neighborhoods of cities like Boston.46

At the time of Tocqueville’s observations (in the 1830s), “the means available to the authorities for the discovery of crimes and arrest of criminals [were] few,”47 yet Tocqueville doubted “whether in any other country crime so seldom escapes punishment.”48 Citizens handled most crimes informally, forming committees to catch criminals and hand them over to the courts.49 Private mobs in early America dealt with larger threats to public safety and welfare, such as houses of ill fame.50 Nothing struck a European traveler in America, wrote Tocqueville, more than the absence of government in the streets.51

Formal criminal justice institutions dealt only with the most severe crimes. Misdemeanor offenses had to be dealt with by the private citizen on the private citizen’s own terms. “The farther back the [crime rate] figures go,” according to historian Roger Lane, “the higher is the relative proportion of serious crimes.”52 In other words, before the advent of professional policing, fewer crimes ‚” and only the most serious crimes ‚” were brought to the attention of the courts.

After the 1850s, cities in the northeastern United States gradually acquired more uniformed patrol officers. The criminal justice model of the Framers’ era grew less recognizable. The growth of police units reflected a “change in attitude” more than worsening crime rates.53 Americans became less tolerant of violence in their streets and demanded higher standards of conduct.54 Offenses which had formerly earned two-year sentences were now punished by three to four years or more in a state penitentiary.55

POLICE AS SOCIAL WORKERS

Few of the duties of Founding-era sheriffs involved criminal law enforcement. Instead, civil executions, attachments and confinements dominated their work.56 When professional police units first arrived on the American scene, they functioned primarily as protectors of public safety, health and welfare. This role followed the “bobbie” model developed in England in the 1830s by the father of professional policing, Sir Robert Peel.57

Early police agencies provided a vast array of municipal services, including keeping traffic thoroughfares clear. Boston police made 30,681 arrests during one fiscal year in the 1880s, but in the same year reported 1,472 accidents, secured 2,461 buildings found open, reported thousands of dangerous and defective streets, sidewalks, chimneys, drains, sewers and hydrants, tended to 169 corpses, assisted 148 intoxicated persons, located 1,572 lost children, reported 228 missing (but only 151 found) persons, rescued seven persons from drowning, assisted nearly 2,000 sick, injured, and insane persons, found 311 stray horse teams, and removed more than fifty thousand street obstructions.58

Police were a “kind of catchall or residual welfare agency,”59 a lawful extension of actual state ‘police powers.’60 In the Old West, police were a sanitation and repair workforce more than a corps of crime-fighting gun-slingers. Sheriff Wyatt Earp of OK Corral fame, for example, repaired boardwalks as part of his duties.61

THE WAR ON CRIME

Toward the end of the nineteenth century, police forces took on a brave new role: crime-fighting. The goal of maintaining public order became secondary to chasing lawbreakers. The police cultivated a perception that they were public heroes who “fought crime” in the general, rather than individual sense.

The 1920s saw the rise of the profession’s second father ‚” or perhaps its wicked stepfather ‚” J. Edgar Hoover.62 Hoover’s Federal Bureau of Investigation (FBI) came to epitomize the police profession in its sleuth and intelligence-gathering role. FBI agents infiltrated mobster organizations, intercepted communications between suspected criminals, and gathered intelligence for both law enforcement and political purposes.

This new view of police as soldiers locked in combat against crime caught on quickly.63 The FBI led local police to develop integrated repositories of fingerprint, criminal, and fraudulent check records. The FBI also took over the gathering of crime statistics (theretofore gathered by a private association),64 and went to war against “Public Enemy Number One” and others on their “Ten Most Wanted” list.65 Popular culture began to see police as a “thin blue line,” that “serves and protects” civilized society from chaos and lawlessness.66

THE ABSENCE OF CONSTITUTIONAL CRIME-FIGHTING POWER

But the constitutions of the Founding Era gave no hint of any thin blue line. Nothing in their texts enunciated any governmental power to “fight crime” at all. “Crime-fighting” was intended as the domain of individuals touched by crime. The original design under the American legal order was to restore a semblance of private justice. The courts were a mere forum, or avenue, for private persons to attain justice from a malfeasor.67 The slow alteration of the criminal courts into a venue only for the government’s claims against private persons turned the very spirit of the Founders’ model on its head.

To suggest that modern policing is extraconstitutional is not to imply that every aspect of police work is constitutionally improper.68 Rather, it is to say that the totality and effect of modern policing negates the meaning and purpose of certain constitutional protections the Framers intended to protect and carry forward to future generations. Modern-style policing leaves many fundamental constitutional interests utterly unenforced.

Americans today, for example, are far more vulnerable to invasive searches and seizures by the state than were the Americans of 1791.69 The Framers lived in an era in which much less of the world was in “plain view” of the government and a “stop and frisk” would have been rare indeed.70 The totality of modern policing also places pedestrian and vehicle travel at the mercy of the state, a development the Framers would have almost certainly never sanctioned. These infringements result not from a single aspect of modern policing, but from the whole of modern policing’s control over large domains of private life that were once “policed” by private citizens.

THE DEVELOPMENT OF DISTINCTIONS

The treatment of law enforcement in the courts shows that the law of crime control has changed monumentally over the past two centuries. Under the common law, there was no difference whatsoever between the privileges, immunities, and powers of constables and those of private citizens. Constables were literally and figuratively clothed in the same garments as everyone else and faced the same liabilities ‚” civil and criminal ‚” as everyone else under identical circumstances. Two centuries of jurisprudence, however, have recast the power relationships of these two roles dramatically.

Perhaps the first distinction between the rights of citizen and constabulary came in the form of increased power to arrest. Early in the history of policing, courts held that an officer could arrest if he had “reasonable belief both in the commission of a felony and in the guilt of the arrestee.71 This represented a marginal yet important distinction from the rights of a “private person,” who could arrest only if a felony had actually been committed.72 It remains somewhat of a mystery, however, where this distinction was first drawn.73 Scrutiny of the distinction suggests it arose in England in 1827 ‚” more than a generation after ratification of the Bill of Rights in the United States.74

Moreover, the distinction was illegitimate from its birth, being a bastardization of an earlier rule allowing constables to arrest upon transmission of reasonably reliable information from a third person.75 The earlier rule made perfect sense when many arrests were executed by private persons. “Authority” was a narrow defense available only to those who met the highest standard of accuracy.76 But when Americans began to delegate their law enforcement duties to professionals, the law relaxed to allow police to execute warrantless felony arrests upon information received from third parties. For obvious reasons, constables could not be required to be “right” all of the time, so the rule of strict liability for false arrest was lost.77

The tradeoff has had the effect of depriving Americans of certainty in the executions of warrantless arrests. Judges now consider only the question of whether there was reasonable ground to suspect an arrestee, rather than whether the arrestee was guilty of any crime. This loss of certainty, when combined with greater deference to the state in most law enforcement matters, has essentially reversed the original intent and purpose of American law enforcement that the state act against stern limitations and at its own peril. Because arrest has become the near exclusive province of professional police, Americans have fewer assurances that they are free from unreasonable arrests.

Distinctions between the privileges of citizens and police officers grew more rapidly in the twentieth century. State and federal lawmakers enshrined police officers with expansive immunities from firearm laws78 and from laws regulating the use of equipment such as radio scanners, body armor, and infrared scopes.79 Legislatures also exempted police from toll road charges,80 granted police confidential telephone numbers and auto registration,81 and even exempted police from fireworks regulations.82 Police are also protected by other statutory immunities and protections, such as mandatory death sentences for defendants who murder them,83 reimbursement of moving expenses when officers receive threats to their lives,84 and even special protections from assailants infected with the AIDS virus.85 Officers who illegally eavesdrop, wiretap, or intrude upon privacy are protected by a statutory (as well as case law) “good faith” defense,86 while private citizens who do so face up to five years in prison. The tendency of legislatures to equip police with ever-expanding rights, privileges and powers has, if anything, been strengthened rather than limited by the courts.88

But this growing power differential contravenes the principles of equal citizenship that dominated America’s founding. The great principle of the American Revolution was, after all, the doctrine of limited government.89 Advocates of the Bill of Rights saw the chief danger of government as the inherently aristocratic and disparate power of government authority.90 Founding-era constitutions enunciated the principle that all men are “equally free” and that all government is derived from the people.91

RESISTING ARREST

Nothing illustrates the modern disparity between the rights and powers of police and citizen as much as the modern law of resisting arrest. At the time of the nation’s founding, any citizen was privileged to resist arrest if, for example, probable cause for arrest did not exist or the arresting person could not produce a valid arrest warrant where one was needed.92 As recently as one hundred years ago, but with a tone that seems as if from some other, more distant age, the United States Supreme Court held that it was permissible (or at least defensible) to shoot an officer who displays a gun with intent to commit a warrantless arrest based on insufficient cause.93 Officers who executed an arrest without proper warrant were themselves considered trespassers, and any trespassee had a right to violently resist (or even assault and batter) an officer to evade such arrest.94

Well into the twentieth century, violent resistance was considered a lawful remedy for Fourth Amendment violations.95 Even third-party intermeddlers were privileged to forcibly liberate wrongly arrested persons from unlawful custody.96 The doctrine of non-resistance against unlawful government action was harshly condemned at the constitutional conventions of the 1780s, and both the Maryland and New Hampshire constitutions contained provisions denouncing nonresistance as “absurd, slavish, and destructive of the good and happiness of mankind.”97

By the 1980s, however, many if not most states had (1) eliminated the common law right of resistance,98 (2) criminalized the resistance of any officer acting in his official capacity,99 (3) eliminated the requirement that an arresting officer present his warrant at the scene,100 and (4) drastically decreased the number and types of arrests for which a warrant is required.101 Although some state courts have balked at this march toward efficiency in favor of the state,102 none require the level of protection known to the Framers.103

But the right to resist unlawful arrest can be considered a constitutional one. It stems from the right of every person to his bodily integrity and liberty of movement, among the most fundamental of all rights.104 Substantive due process principles require that the government interfere with such a right only to further a compelling state interest105 ‚” and the power to arrest the citizenry unlawfully can hardly be characterized as a compelling state interest.106 Thus, the advent of professional policing has endangered important rights of the American people.

The changing balance of power between police and private citizens is illustrated by the power of modern police to use violence against the population.107

As professional policing became more prevalent in the twentieth century, police use of deadly force went largely without clearly delineated guidelines (outside of general tort law).108 Until the 1970s, police officers shot and killed fleeing suspects (both armed and unarmed) at their own discretion or according to very general department oral policies.109 Officers in some jurisdictions made it their regular practice to shoot at speeding motorists who refused orders to halt.110 More than one officer tried for murder in such cases ‚” along with fellow police who urged dismissals ‚” argued that such killings were in the discharge of official duties.111 Departments that adopted written guidelines invariably did so in response to outcries following questionable shootings.112 Prior to 1985, police were given near total discretion to fire on the public wherever officers suspected that a fleeing person had committed a felony.113 More than 200 people were shot and killed by police in Philadelphia alone between 1970 and 1983.114

In 1985, the United States Supreme Court purported to stop this carnage by invalidating the use of deadly force to apprehend unarmed, nonviolent suspects.115 Tennessee v. Garner116 involved the police killing of an unarmed juvenile burglary suspect who, if apprehended alive, would likely have been sentenced to probation.117 The Court limited police use of deadly force to cases of self defense or defense of others.118

As a practical matter, however, the Garner rule is much less stringent. Because federal civil rights actions inevitably turn not on a strict constitutional rule (such as the Garner rule), but on the perception of a defendant officer, officers enjoy a litigation advantage over all other parties.119 In no reported case has a judge or jury held an officer liable who used deadly force where a mere “reasonable” belief that human life was in imminent danger existed.120 Some lower courts have interpreted Garner to permit deadly force even where suspects pose no immediate and direct threat of death or serious injury to others.121 The U.S. Ninth Circuit Court of Appeals recently denied the criminal liability of an agent who shot and killed an innocent person to prevent another person from retreating to “take up a defensive position,” drawing criticism from Judge Kozinski that the court had adopted the “007 standard” for police shootings.122

Untold dozens, if not hundreds, of Americans have been shot in the back while fleeing police, even after the Garner decision. Police have shot and killed suspects who did nothing more than make a move,123 reach for their identification too quickly,124 reach into a jacket or pocket,125 “make a motion” of going for a gun,126 turn either toward or away from officers,127 ‘pull away’ from an officer as an officer opened a car door,128 rub their eyes and stumble forward after a mace attack,129 or allegedly lunge with a knife,130 a hatchet,131or a ballpoint pen.132 Cops have also been known to open fire on and kill persons who brandished or refused to drop virtually any hand-held object ‚” a Jack Daniel’s whiskey bottle,133 a metal rod,134 a wooden stick,135 a kitchen knife (even while eating dinner),136 a screwdriver,137 a rake138 ‚” or even refused an order to raise their hands.139

Cops who shoot an individual holding a shiny object that can be said to resemble a gun ‚” such as a cash box,140 a shiny silver pen,141 a TV remote control,142 or even a can opener143 ‚” are especially likely to avoid liability. In line with this defense, police officers nationwide have been caught planting weapons on their victims in order to make shootings look like self defense.144 In one of the more egregious examples ever proven in court, Houston police were found during the 1980s to have utilized an unofficial policy of planting guns on victims of police violence.145 Seventy-five to eighty percent of all Houston officers apparently carried “throw-down” weapons for such purposes.146 Only the dogged persistence of aggrieved relatives and the firsthand testimony of intrepid witnesses unraveled the police cover-up of the policy.147

Resisting arrest, defending oneself, or fleeing may also place an American in danger of being killed by police.148 Although the law clearly classifies such killings as unlawful, police are rarely made to account for such conduct in court.149 Only where the claimed imminent threat seems too contrived ‚” such as where an officer opened fire to defend himself from a pair of fingernail clippers150 ‚” or where abundant evidence of a police cover-up exists, will courts uphold damage awards against police officers who shoot civilians.151

As Professor Peter L. Davis points out, there is no good reason why police should not be liable criminally for their violations of the criminal code, just as other Americans would expect to be (and, indeed, as the constables of the Founding Era often were).152 Yet in modern criminal courts, police tend to be more bulletproof than the Kevlar vests they wear on the job. Remember that the district attorneys responsible for prosecuting police for their crimes are the same district attorneys who must defend those officers in civil cases involving the same facts.153 Under the Framers’ common law, this conflict of interest did not arise at all because a citizen grand jury ‚” independent from the state attorney general ‚” brought charges against a criminal officer, and the officer’s victim prosecuted the matter before a petit jury.154 But the modern model of law enforcement provides no real remedy, and no ready outlet for the law to work effectively against police criminals. Indeed, modern policing acts as an obstruction of justice with regard to police criminality.

The bloodstained record of shootings, beatings, tortures and mayhem by American police against the populace is too voluminous to be recounted in a single article.155 At least 2,000 Americans have been killed at the hands of law enforcement since 1990.156 Some one-fourth of these killings ‚” about fifty per year ‚” are alleged by some authorities to be in the nature of murders.157 Yet only a handful have led to indictment, conviction and incarceration.158 This is true even though most police killings involve victims who were unarmed or committed no crime.159

Killings by police seem as likely as killings by death-row murderers to demonstrate extreme brutality or depravity. Police often fire a dozen or more bullets at a victim where one or two would stop the individual.160 Such indicia of viciousness and ferocity would qualify as aggravating factors justifying the death penalty for a civilian murderer under the criminal laws of most states.161

From the earliest arrival of professional policing upon America’s shores, police severely taxed both the largess and the liberties of the citizenry.162 In early municipal police departments, cops tortured, harassed and arrested thousands of Americans for vagrancy, loitering, and similar “crimes,” or detained them on mere “suspicion.”163 Where evidence was insufficient to close a case, police tortured suspects into confessing to crimes they did not commit.164 In the name of law enforcement, police became professional lawbreakers, “constantly breaking in upon common law and … statute law.”165 In 1903 a former New York City police commissioner remarked that he had seen “a dreary procession of citizens with broken heads and bruised bodies against few of whom was violence needed to affect an arrest…. The police are practically above the law.”166

THE SAFETY OF THE POLICE PROFESSION

Defenders of police violence often cite the dangerous nature of police work, claiming the police occupation is filled with risks to life and health. Police training itself ‚” especially elite SWAT-type or paramilitary training that many officers crave ‚” reinforces the “dangerousness” of police work in the officers’ own minds.167 There is some truth to this perception, in that around one hundred officers are feloniously killed in the line of duty each year in the United States.168

But police work’s billing as a dangerous profession plummets in credibility when viewed from a broader perspective. Homicide, after all, is the second leading cause of death on the job for all American workers.169 The taxicab industry suffers homicide rates almost six times higher than the police and detective industry.170 A police officer’s death on the job is almost as likely to be from an accident as from homicide.171 When overall rates of injury and death on the job are examined, policing barely ranks at all. The highest rates of fatal workplace injuries occur in the mining and construction industries, with transportation, manufacturing and agriculture following close behind.172 Fully 98 percent of all fatal workplace injuries occur in the civilian labor force.173

Moreover, police work is generously rewarded in terms of financial, pension and other benefits, not to mention prestige. Police salaries may exceed $100,000 annually plus generous health insurance and pension plans ‚” placing police in the very highest percentiles of American workers in terms of compensation.174 The founding generation would have been utterly astonished by such a transfer of wealth to professional law enforcers.175 This reality of police safety, security and comfort is one of the best-kept secrets in American labor.

In all, it is questionable whether modern policing actually decreases the level of bloodshed on American streets. Police often bring mayhem, confusion and violence wherever they are called.176 Approximately one-third of the people killed in high-speed police car chases (which are often unnecessarily escalated by police) are innocent bystanders.177 Cops occasionally prevent rather than execute rescues.178 “Police practices” ranked as the number one cause of violent urban riots of the 1960s.179 Indeed, police actively participated in or even initiated some of the nation’s worst riots.180 During the infamous Chicago Police Riot during the Democratic National Convention in 1968, police physically attacked 63 newsmen and indiscriminately beat and clubbed numerous innocent bystanders.181

PROFESSIONALISM?

If the modern model of cop-driven criminal justice has any defense at all, it is its “professionalism.” Private law enforcement of the type intended by the Framers was supposedly more inclined toward lax and arbitrary enforcement than professional officers who are sworn to uphold the law.182 Upon scrutiny, however, the claim that professional police are more reliable, less arbitrary, and more capable of objective law enforcement than private law enforcers is drastically undermined.

The constitutional model of law enforcement (investigation by a citizen grand jury, arrest by private individuals, constables or citizens watch, and private prosecution) became seen as inefficient and ineffective as America entered its industrial age.183 Yet the grand jury in its natural and unhobbled state is more, rather than less, able to pursue investigations when compared to professional police. Grand jurors are not constrained by the Fourth, Fifth or Sixth amendments ‚” or at least the “exclusionary rule” fashioned by the courts to enforce those amendments.184

In the absence of police troops to enforce the law, the early criminal justice system was hardly as hobbled and impotent as conventional wisdom suggests. Private watch groups and broad-based advocacy groups existed to enforce laws and track criminals among jurisdictions. Thousands of local antihorsethief associations and countless ‘detecting societies’ sprang up to answer the call of crime victims in the nineteenth century.185 In Maine, the “Penobscot Temperance League” hired detectives to investigate and initiate criminal cases against illegal liquor traffickers.186 In the 1870s a private group called the Society for the Suppression of Vice became so zealous in garnering prosecutions of the immoral that it was accused in 1878 of coercing a defendant into mailing birth control information in violation of federal statutes,187 one of the earliest known instances of conduct that later became defined as entrapment.188 Although some of these private crime-fighting groups were invested with limited state law enforcement powers,189 they were not police officers in the modern sense and received no remuneration.

Such volunteer nonprofessionals continue to aid law enforcement as auxiliary officers in many American communities.190 Additionally, private organizations affiliated with regional chambers of commerce, neighborhood watch and other citizens’ groups continue to play a substantial ‚” though underappreciated ‚” role in fighting crime.191 America also has a long history of outright vigilante justice, although such vigilantism has been exaggerated both in its sordidness192 and in its scope.193

Moreover, government-operated policing is hardly a monopoly even today, neither in maintaining order nor over matters of expertise and intelligence-gathering.194 There are three times more private security guards than public police officers and even activities such as guarding government buildings (including police stations) and forensic analysis are now done by private security personnel.195

The chief selling point for professional policing seems to be the idea that sworn government agents are more competent crime solvers than grand juries, private prosecutors, and unpaid volunteers. But this claim disintegrates when the realities of police personnel are considered. In 1998, for example, forty percent of graduating recruits of the Washington, D.C. police academy failed the comprehensive exam required for employment on the force and were described as “practically illiterate” and “borderline-retarded.”196 As a practical matter, police are more dependent upon the public than the public is dependent upon police.197

Cops rely on the public for a very high percentage of their investigation clearances. As the rate of crimes committed by strangers increases, the rate of clearance by the police invariably declines.198 Roughly two-thirds of major robbery and burglary arrests occur solely because a witness can identify the offender, the offender is caught at or near the crime scene, or the offender leaves evidence at the scene.199 In contrast, where a suspect cannot be identified in such ways, odds are high that the crime will go unsolved.200

Studies show that as government policing has taken over criminal investigations, the rates of clearance for murder investigations have actually gone down. For more than three decades ‚” while police units have expanded greatly in size, power and jurisdiction ‚” the gap between the number of homicides in the United States and the number of cases solved has widened by almost twenty percent.201 Today, almost three in ten homicides go unsolved.202

DNA EVIDENCE ILLUSTRATES FALLIBILITY OF POLICE

Moreover, a surprisingly high number of police conclusions are simply wrong. Since 1963, at least 381 murder convictions have been reversed because of police or prosecutorial misconduct.203 In the 25-year period following the Supreme Court’s ruling in Gregg v. Georgia204 reaffirming the use of capital punishment, one innocent person has been freed from death row for every seven who have been executed.205 In Illinois, Thirteen men have been freed from death row since 1977 after proving their innocence ‚” more than the twelve who were actually put to death over the same period. Governor George Ryan finally ordered a moratorium on executions until the death penalty system could be revamped,206 referring to the death penalty system as “fraught with error.”207

Yet death penalty cases are afforded far more due process and scrutiny of evidence than noncapital cases. If anything, the error rate of police in noncapital cases is likely substantially higher. Governor Ryan’s words would seem to apply doubly to the entire system of police-driven investigation.

The advent of DNA analysis in the courtrooms of the 1990s greatly accelerated the rate at which police errors have been proven in court, even while avenues for defendants’ appeals have been systematically cut off by Congress and state legislatures.208 DNA testing before trial has exonerated at least 5000 prime suspects who would likely have otherwise been tried on other police evidence.209 Often, exculpatory DNA revelations have come in cases where other police-generated evidence was irreconcilable, suggesting falsification of evidence or other police misconduct.210 The sheer number of wrongly accused persons freed by DNA evidence makes it beyond dispute that police investigations are far less trustworthy than the public would like to believe.211

Even more unjustified is the notion that a justice system powered by professional police possesses higher levels of integrity, trustworthiness and credibility than the criminal justice model intended by the Framers. Within the criminal justice system, cops are regarded as little more than professional witnesses of convenience, if not professional perjurers, for the prosecution.212 Almost no authority credits police with high levels of honesty. Indeed, the daily work of cops requires strategic lying as part of the job description.213 Cops lie about the strength of their evidence in order to obtain confessions,214 about giving Miranda warnings to arrestees when on the witness stand,215 and even about substantive evidence when criminal cases need more support. Cops throughout the United States have been caught fabricating, planting and manipulating evidence to obtain convictions where cases would otherwise be very weak.216 Some authorities regard police perjury as so rampant that it can be considered a “subcultural norm rather than an individual aberration” of police officers.217 Large-scale investigations of police units in virtually every major American city have documented massive evidence tampering, abuse of the arresting power, and discriminatory enforcement of laws according to race, ethnicity, gender, and socioeconomic status. Recent allegations in Los Angeles charge that dozens of officers abused their authority by opening fire on unarmed suspects, planting evidence, dealing illegal drugs, or framing some 200 innocent people.218 More than a hundred prosecutions had to be dismissed in Chicago in 1997 due to similar police misconduct.219 During the infamous “French connection” case of the 1970s, New York City narcotics detectives were caught diverting 188 pounds of heroin and 31 pounds of cocaine for their own use, making the City’s Special Investigating Unit the largest heroin and cocaine dealer in the city.220

Police criminality was so acute in New Orleans during the 1980s and 1990s that people were afraid to report crimes for fear that corrupt officers would retaliate or tip off organized crime figures. One New Orleans officer was convicted of ordering the execution of a witness who reported him to the internal affairs unit for allegedly pistol-whipping a teenager.221 Thirty-six Washington, D.C. officers were indicted on charges such as drug dealing, sexual assault, murder, sodomy and kidnapping in 1992.222

In Detroit, repeated corruption allegations have seen a number of low- and high-ranking officers go to prison for drug trafficking, hiring hit men, providing drug protection, and looting informant funds.223 Police burglary rings have been uncovered in several cities.224

Patterns of police abuse tend to repeat themselves in major American cities despite endless attempts at reform.225 New York City police, for example, have been the subject of dozens of wide-ranging corruption probes over the past hundred years226 yet continue to generate corruption allegations.227 Police exhibit unique levels of occupational solidarity.228 Review boards and internal affairs commissions inevitably fail to penetrate police loyalty and find resistance from every rank.229 Cops inevitably form an isolated authoritarian subculture that is both cynical toward the rule of law and disrespectful of the rights of fellow citizens.230 The code of internal favoritism that holds police together may more aptly be described as syndicalism rather than professionalism. Historically, urban police “collected” from local businesses.231 Today, a more subtle brand of racketeering prevails, whereby police assist those businesses which provide support for police and undermine businesses which are perceived as antagonistic to police interests. This same shakedown also applies to newspaper editors and politicians.232

Even at the federal level, where national investigators presume to police corruption and oversee local departments, favoritism toward the police role is rampant. In 1992, for example, the federal government filed criminal charges in only 27 cases of police criminality.233 A federal statute criminalizing violations of the Fourth Amendment has never been enforced even a single time, although it has been a part of the U.S. Code since 1921.234 Throughout the 1980s and ’90s, the FBI Crime Laboratory actively abetted the misconduct of local police departments by misrepresenting forensic evidence to bolster police cases against defendants.235

COPS NOT COST-EFFECTIVE DETERRENT

In terms of pure economic returns, police are a surprisingly poor public investment. Typical urban police work is very expensive because police see a primary part of their role as intervention for its own sake ‚” poking, prodding and questioning the public in hope of turning up evidence of wrongdoing. Toward this end, police spin quick U-turns, drive slowly and menacingly down alleyways, reverse direction to track suspected scofflaws, and conduct sidewalk pat-down searches of potential criminals absent clear indicia of potential criminality.236 Studies indicate, however, that such tactics are essentially worthless in the war on crime. One experiment found that when police do not ‘cruise’ but simply respond to dispatched calls, crime rates are completely unaffected.237

Thus the very aspect of modern policing that the public view as most effective ‚” the creation of a ‘police presence’ ‚” is in fact a monstrous waste of public resources.238 Similarly, the history of America’s expenditures in the war on drugs provides little support for the proposition that money spent on policing yields positive returns.239 University of Chicago professor John Lott has found that while hiring police can reduce crime rates, the net benefit of hiring an additional officer is about a quarter of the benefit from arming the public with an equivalent dollar amount of concealed handguns.240

There is no doubt that modern police are a creation of lawful representative legislatures and are very popular with the general public.241 But the rights of Americans depend upon freedom from government as much as freedom of government.242 Constitutions must provide a countermajoritarian edifice to the threat posed by the will of the masses, and courts must at times pronounce even the most popular programs invalid when they contravene the fundamental liberties of a minority ‚” or even the whole people at times when they inappropriately devalue their liberties.243

PART II

POLICE AS A STANDING ARMY

It is largely forgotten that the war for American independence was initiated in large part by the British Crown’s practice of using troops to police civilians in Boston and other cities.244 Professional soldiers used in the same ways as modern police were among the primary grievances enunciated by Jefferson in the Declaration of Independence. (“[George III] has kept among us standing armies”; “He has affected to render the military independent of and superior to the civil power”; “protecting them, by a mock trial….”).245 The duties of such troops were in no way military but involved the keeping of order and the suppression of crime (especially customs and tax violations).

Constitutional arguments quite similar to the thesis of this article were made by America’s Founders while fomenting the overthrow of their government. Thomas Jefferson proclaimed that although Parliament was supreme in its jurisdiction to make laws, “his majesty has no right to land a single armed man on our shores” to enforce unpopular laws.246 James Warren said that the troops in Boston were there on an unconstitutional mission because their role was not military but rather to enforce “obedience to Acts which, upon fair examination, appeared to be unjust and unconstitutional.”247 Colonial pamphleteer Nicholas Ray charged that Americans did not have “an Enemy worth Notice within 3000 Miles of them.”248 “[T]he troops of George the III have cross’d the wide atlantick, not to engage an enemy,” charged John Hancock, but to assist constitutional traitors “in trampling on the rights and liberties of [the King’s] most loyal subjects …”249

The use of soldiers to enforce law had a long and sullied history in England and by the mid-1700s were considered a violation of the fundamental rights of Englishmen.250 The Crown’s response to London’s Gordon Riots of 1780 ‚” roughly contemporary to the cultural backdrop of America’s Revolution ‚” brought on an immense popular backlash at the use of guards to maintain public order.251 “[D]eep, uncompromising opposition to the maintenance of a semimilitary professional force in civilian life” remained integral to Anglo-Saxon legal culture for another half century.252

Englishmen of the Founding era, both in England and its colonies, regarded professional police as an “alien, continental device for maintaining a tyrannical form of Government.”253 Professor John Phillip Reid has pointed out that few of the rights of Englishmen “were better known to the general public than the right to be free of standing armies.”254 “Standing armies,” according to one New Hampshire correspondent, “have ever proved destructive to the Liberties of a People, and where they are suffered, neither Life nor Property are secure.”255

If pressed, modern police defenders would have difficulty demonstrating a single material difference between the standing armies the Founders saw as so abhorrent and America’s modern police forces. Indeed, even the distinctions between modern police and actual military troops have blurred in the wake of America’s modern crime war.256 Ninety percent of American cities now have active special weapons and tactics (SWAT) teams, using such commando-style forces to do “high risk warrant work” and even routine police duties.257 Such units are often instructed by active and retired United States military personnel.258

In Fresno, California, a SWAT unit equipped with battering rams, chemical agents, fully automatic submachine guns, and ‘flashbang’ grenades roams full-time on routine patrol.259 According to criminologist Peter Kraska, such military policing has never been seen on such a scale in American history, “where SWAT teams routinely break through a door, subdue all the occupants, and search the premises for drugs, cash and weapons.”260 In high-crime or problem areas, police paramilitary units may militarily engage an entire neighborhood, stopping “anything that moves” or surrounding suspicious homes with machine guns openly displayed.261

Much of the importance of the standing-army debates at the ratification conventions has been overlooked or misinterpreted by modern scholars. Opponents of the right to bear arms, for example, have occasionally cited the standing-army debates to support the proposition that the Framers intended the Second Amendment to protect the power of states to form militias.262 Although this argument has been greatly discredited,263 it has helped illuminate the intense distrust that the Framers manifested toward occupational standing armies. The standing army the Framers most feared was a soldiery conducting law enforcement operations in the manner of King George’s occupation troops ‚” like the armies of police officers that now patrol the American landscape.

THE SECOND AMENDMENT

The actual intent of the Second Amendment ‚” that it protect a right of people to maintain the means of violently checking the power of government ‚” has been all but lost in modern American society.264 Modern policing’s increasing monopoly on firepower tends to undermine the Framers’ intent that the whole people be armed, equipped, and empowered to resist the state. Many police organizations lobby incessantly for gun control, even though the criminological literature yields scant empirical support for general gun control as a crime-prevention measure.265

Nor is there much legitimacy to the claim that professional police are more accurate or responsible with firearms than the armed citizenry intended by the Framers. To this day, civilians shoot and kill at least twice as many criminals as police do every year,266 and their ‘error rate’ is several times lower.267 In a government study of handgun battles that lead to officer injuries, it was found that police who fired upon their killers were less than half as accurate as their civilian, nonprofessional, assailants.268

Moreover, police seem hardly less likely to misuse firearms than the general public.269 In New York City, where private possession of handguns has been virtually eliminated for most civilians, problems with off-duty police misusing firearms have repeatedly surfaced.270 Los Angeles police have been found to fire their weapons inappropriately in seventy-five percent of cases.271 Between early 1989 and late 1992, more than one out of every seven shots fired by Washington, D.C. police officers was fired accidentally.272

THE THIRD AMENDMENT

Although standing armies were not specifically barred by the final version of the Constitution’s text, some authorities have pointed to the Third Amendment273 as a likely fount for such a conceptual proposition.274 Additionally, the Amendment’s proscription of quartering troops in homes might well have been interpreted as a general anti-search and seizure principle if the Fourth Amendment had never been enacted.275 The Third Amendment was inspired by sentiments quite similar to those that led to passage of the Second and Fourth Amendments, rather than fear of military operations. Writing in the 1830s, Justice Story regarded the Third Amendment as a security that “a man’s house shall be his own castle, privileged against all civil and military intrusion.”276

The criminal procedure concerns that dominated the minds of the Framers of the Bill of Rights were created not only before the Revolution but also after it. In the five years following British surrender, the independent states vied against each other for commercial advantage, debt relief, and land claims. Conflict was especially fierce between the rival settlers of Pennsylvania and Connecticut on lands in the west claimed simultaneously by both states.277 Both states sent partisan magistrates and troops into the region, and each faction claimed authority to remove claimants of the rival state.278 Magistrates occasionally ordered arrest without warrant, turned people out of their homes, and even ordered submission to the quartering of troops in homes.279 In 1784, a Pennsylvania grand jury indicted one such magistrate and forty others for abuse of their authority.280 Many agents had to be arrested before the troubles finally ended in 1788 ‚” the very moment when the Constitution was undergoing its ratification debates.281 These troubles, and not memories of life under the Crown, were fresh in the minds of the Framers who proposed and ratified the Bill of Rights.

The Third Amendment’s proscription of soldiers quartered in private homes addressed a very real domestic concern about the abuse of state authority in 1791. This same fear of an omnipresent and all-controlling government is hardly unfounded in modern America. Indeed, the very evils the Framers sought to remedy with the entire Bill of Rights ‚” the lack of security from governmental growth, control and power ‚” have come back to haunt modem Americans like never before.282

THE RIGHT TO BE LEFT ALONE

The ‘police state’ known by modern Americans would be seen as quite tyrannical to the Framers who ratified the Constitution. If, as Justice Brandeis suggested, the right to be left alone is the most important underlying principle of the Constitution,283 the cop-driven model of criminal justice is anathemic to American constitutional principles. Today a vast and omnipotent army of insurgents patrols the American landscape in place of grand juries, private prosecutors, and the occasional constable. This immense soldiery is forever at the beck and call of whatever social forces rule the day, or even the afternoon.284

THE FOURTH AMENDMENT

Now to the Fourth Amendment. The Amendment reads: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”285 This protection was clearly regarded as one of the more important provisions of the Bill of Rights during debates in and out of Congress prior to ratification.286 To this day, the Amendment is probably the most cited constitutional provision in challenges to police action.

The cold, hard reality, however, is that the interest protected by the amendment ‚” security from certain types of searches and seizures ‚” has been drastically scaled back since 1791. In saying this, I am mindful that there are those among the highest echelons of the bench and academy who claim that current Fourth Amendment law is more protective than the Framers intended.287 Indeed, there are those claiming the mantles of textualism and originalism who would decrease Fourth Amendment rights even further.288 The ever-influential Akhil Amar, for example, has argued that the Fourth Amendment’s text does not really require warrants but merely lays out the evidentiary foundation required to obtain warrants.289 Amar joins other “originalist” scholars who emphasize that the only requirement of the Fourth Amendment’s first clause (“The right of the people to be secure in their persons, papers, and effects from unreasonable searches and seizures shall not be violated”) is that all searches and seizures be “reasonable.”290 The warrant requirement pronounced in many Supreme Court opinions, according to Amar, places an unnecessary burden upon law enforcement and should be abandoned for a rule Amar considers more workable ‚” namely civil damages for unreasonable searches after the fact as determined by juries.

This type of “originalism” has appealed to more than one U.S. Supreme Court justice,291 at least one state high court,292 and various legal commentators.293 Indeed, it has brought a perceivable shift to the Supreme Court’s Fourth Amendment jurisprudence.294 Even the U.S. Justice Department has adopted this argument as its own in briefs filed in the U.S. Supreme Court arguing for elimination of the warrant requirement.295

The problem with this line of interpretation is that it does not square with the original view of the Framers. Even the most cursory examination of history reveals that law enforcers of the Founding Era, whether private persons, sheriffs or constables, were obligated to procure warrants in many circumstances that modern courts do not require warrants.296 The general rule that warrants were required for all searches and seizures except those involving circumstances of the utmost urgency seems so well settled at the time of ratification that it is difficult to imagine a scholar arguing otherwise.297 But Professor Amar does. “Supporters of the warrant requirement,” the professor writes, “have yet to find any cases” enunciating the warrant requirement before the Civil War.298

Perhaps Amar has overlooked the 1814 case of Grumon v. Raymond, in which the Connecticut Supreme Court held both a constable, who executed an improper search warrant, and a justice of the peace who issued the warrant, civilly liable for trespass.299 The court in Grumon clearly stated that the invalidity of the search warrant left the search’s legality “on no better ground than it would be if [the search had been pursuant to] no process.”300 Or maybe Amar is unfamiliar with the 1807 case of Stoyel v. Lawrence, holding a sheriff liable for executing a civil arrest warrant after the warrant’s due date and declaring that the warrant “gave the officer no authority whatever, and, consequently, formed no defence”;301 or the 1763 Massachusetts case of Rex v. Gay, acquitting an arrestee for assaulting and beating a sheriff who arrested him pursuant to a facially invalid warrant;302 or Batchelder v. Whitcher, holding an officer liable for ordering the seizure of hay by an unsealed warrant in 1838;303 or Conner v. Commonwealth, in which the Pennsylvania Supreme Court concluded in 1810 that if the requirement of warrants based on probable cause could be waived merely to allow constables to more easily arrest criminals, “the constitution is a dead letter.”304

Even the cases Amar cites for the proposition that search warrants were not required under antebellum Fourth Amendment jurisprudence do not squarely support such a proposition.305 Most of them merely repeat the “warrant requirement” of the common law and find that their given facts fit within a common law exception.306 Similarly, the cases Amar cites that interpret various Fourth-Amendment equivalents of state constitutions by no means indicate that Founding-era law enforcers could freely search and seize without warrant wherever it was “reasonable” to do so. 307

WARRANTS A FLOOR, NOT A CEILING

Under Founding-era common law, warrants were often considered as much a constitutional floor as a ceiling. Warrants did provide a defense for constables in most trespass suits, but were not good enough to immunize officials from liability for some unreasonable searches or seizures.308 The most often-cited English case known to the Framers who drafted the Fourth Amendment involved English constabulary who had acted pursuant to a search warrant but were nonetheless found civilly liable for stiff (punitive, actually) damages.309

For more than 150 years, it was considered per se unconstitutional for law enforcers to search and seize certain categories of objects, such as personal diaries or private papers, even with perfectly valid warrants.310 Additionally, Fourth Amendment jurisprudence prohibited the government from seizing as evidence any personal property which was not directly involved in crime, even with a valid warrant.311 The rationale for this “mere evidence” rule was that the interests of property owners were superior to those of the state and could not be overridden by mere indirect evidentiary justifications.312 This rule, like many other obstacles to police search and seizure power, was discarded in the second half of the twentieth century by a Supreme Court much less respectful of property rights than its predecessors.313

PRIVATE PERSONS AND THE FOURTH AMENDMENT

Under the Founders’ Model, a private person like Josiah Butler, who lost twenty pounds of good pork under suspicious circumstances in 1787, could approach a justice of the peace and obtain a warrant to search the property of the suspected thief for the lost meat.314 Private individuals applied for many or most of the warrants in the Founders’ era and even conducted many of the arrests.315 Even where sworn constables executed warrants, private persons often assisted them.316 To avoid liability, however, searchers needed to secure a warrant before acting.317 False arrest was subject to strict liability.318

The Founders contemplated the enforcement of the common law to be a duty of private law enforcement, and assumed that private law enforcers would represent their interests with private means. However, the Founders viewed private individuals executing law enforcement duties as “public authority” and thus intended for the Fourth and Fifth Amendments to apply to such individuals when acting in their law enforcement capacities.319 Consequently, the Supreme Court’s 1921 decision in Burdeau v. McDowell320 ‚” often cited for the proposition that the Fourth Amendment applies only to government agents ‚” was almost certainly either wrongly decided or wrongly interpreted by later courts.321

Some of the earliest English interpretations of the freedom from search and seizure held the protection applicable to private citizens as much as or more so than government agents.322 Massachusetts and Vermont were apparently the first states to require that search and arrest warrants be executed by sworn officers.323 New Hampshire adopted the same rule in 1826, more than a generation after the Bill of Rights was ratified.324 It is likely that some states allowed private persons to execute search warrants well into the nineteenth century.

Because many Founding-era arrests and searches were executed by private persons, and early constables needed the assistance of private persons to do their jobs, the Fourth Amendment was almost certainly intended for application to private individuals. Burdeau cited no previous authority for its proposition in 1921, and early American cases demonstrate an original intent that the Fourth Amendment apply to every searcher acting under color of law.325 On the open seas, most enforcement of prize and piracy laws was done by “privateers” acting for their own gain but who were held accountable in court for their misconduct.326

Later courts have taken this holding to mean that “a wrongful search or seizure conducted by a private party does not violate the Fourth Amendment.” Walter v. U.S. 447 U.S. 649, 656 (1979). See also United States v. Jacobsen, 466 U.S. 109, 113 (1984) (saying “This Court has also consistently construed this protection as proscribing only governmental action; it is wholly inapplicable to a private individual not acting as an agent of the Government or with the participation or knowledge of any government official.”).

As explained in Part I, early constables had powers no greater than those of other individuals, so they needed warrants before engaging in law enforcement activities beyond any citizen’s authority. Like you or I, a constable would be thought outside the bounds of good etiquette (and well outside the law) were he to conduct an unconsented search of another’s person, property or effects, and should ‚” very reasonably ‚” expect to be jailed, physically repulsed, or sued for such conduct.

A private person’s only defense was the absolute correctness of his allegations. A person was liable if, for example, his complaint was too vague as to the address to be searched,327 he misspelled the name of the accused in his complaint,328 or he sought the execution of a warrant naming a “John Doe” as a target.329

This was the constitutional model secured to America by the Framers. The idea of police having special powers was only a seedling, alien to the scheme of ordered liberty and limited government created by the Constitution. Eventually, police interceded between private individuals and magistrates altogether, and today it is virtually unheard of for a private person to seek a search warrant from a magistrate.

Freedom from search and seizure has been retracting in favor of police ever since the ink was dry on the Bill of Rights. The Framers lived under a common law rule that required warrantless arrests be made only for felonies where no warrant could be immediately obtained.330 By the early to mid-1800s, the rule had changed to allow warrantless arrests for all felonies regardless of whether a warrant could be obtained.331 Early American courts also apparently allowed warrantless arrests for misdemeanor breaches of peace committed in the arrestor’s presence. Toward the end of the nineteenth century, most state courts had changed to allow warrantless arrest for all crimes of any kind committed in an officer’s presence, as well as for all felonies committed either within or without an officer’s presence regardless of whether a warrant can be obtained.332

By the mid-1900s, arrest had become the almost-exclusive province of paid police, and their power to arrest opened even wider. A trend toward allowing police to arrest without warrant for all crimes committed even outside their presence has recently developed,333 with little foreseeable court-imposed impediment.334 Almost every American jurisdiction has legislated for the erosion of common law limitations with regard to domestic violence arrests and arrests for other high profile misdemeanors.335

Despite the Fourth Amendment, the Supreme Court has imposed almost no limits on warrantless arrest at all. Only forcibly entering a residence without warrant to arrest someone inside has been found to violate the Fourth Amendment.336 Outside the home, modern police have been essentially licensed by the Court to arrest almost anyone at any time so long as probable cause exists.337 The Supreme Court effectively buried the original purpose of warrantless arrest entirely in 1985, declaring that “[r]estraining police action until after probable cause is obtained… might… enable the suspect to flee in the interim.”338

Long forgotten is the fact that common law allowance for warrantless arrest was precipitated solely on an emergency rationale and allowed only to protect the public from immediate danger.339

The rationale for the felon exception to the warrant requirement in 1791, for example, was that a felony was any crime punishable by death, generally thought to be limited to only a handful of serious crimes.340 Felons were considered “outlaws at war with society,”341 and their apprehension without warrant qualified as one of the “exceptions justified by absolute necessity.”342 By the late twentieth century, however, many crimes the Framers would have considered misdemeanors or no crime at all had been declared felonies and the rationale for immediate community action to apprehend “felons” had changed greatly.343 The courts, however, have been slow to react to this far-reaching change.344 In any case, the vast majority of arrests (seventy to eighty percent) are for misdemeanors,345 which would have been proscribed without warrant under the Framers’ law.

ORIGINALISTS CALL FOR CIVIL DAMAGES

The writings of most modern “originalist” scholars promote civil suits against police departments, instead of exclusion of evidence, as a remedy for police misconduct. Professor Amar, for example, champions a return to civil litigation, but with, somehow, a better return than such actions currently bring.346 He invents a fantastically implausible cause of action where “government should generally not prevail.”347 He bases this idea on actual cases from the nineteenth century where people prevailed against constables and sheriffs in relatively routine circumstances, often with heavy damage awards.348

These cases actually occurred ‚” but in an age before police took over American law enforcement. Civil damages really were a better remedy when many or most searches were sought ‚” and sometimes conducted ‚” by private persons who stood strictly liable in court if their allegations proved false or their conduct proved overzealous.349 American law provided recovery for every false arrest. If it was not the constable who executed the warrant, the private person, who lodged the original insufficient complaint, was liable.350

Under Founding-era common law, liability for officers was in many respects higher than for private persons. Sheriffs and deputies could be held liable for failing to arrest debtors for collection of debts351 or to serve other process,352 for allowing an imprisoned debtor to escape,353 for failing to keep entrusted goods secure354 or to deliver goods in custody at a proper time,355 or for failing to keep faithful accounting and custody of property.356 Sheriffs were also obligated to return writs within a specific time period, at pain of civil damages.357 They were liable to debtors whose property was sold at sheriffs sales if proper advertisement procedures were not followed358 and for negligently allowing other creditors to obtain priority interests on attached property.359

Law enforcers were liable for false imprisonment, even where they acted with court permission, if procedures were improper.360 A deputy was liable for damages to an arrestee whom he arrested outside his jurisdiction.361 Sheriffs were even liable if their deputies executed civil process in a rude and insolent manner.362 When executing writs, sheriffs were liable for any unnecessary violence against innocent third persons who obstructed them.363

The Founders’ law knew no “good faith” defense for law enforcers. Sheriffs and justices who executed arrests pursuant to invalid warrants were considered trespassers (as were any judges who granted invalid warrants). Any person was justified in resisting, or even battering, such officers.364 Justices of the peace could be held liable for ordering imprisonment without taking proper steps.365

Any party who sued out or issued process did so at his peril and was civilly responsible for unlawful writs (even if the executing officer acted in good faith)366

Nor did state authority provide the umbrella of indemnification that now protects public officers. Sheriffs of the nineteenth century often sought protection from liability by obtaining bonds from private sureties.367 Their bonds were used to satisfy civil judgments against them while in office.368 If the amount of their bonds was insufficient to satisfy judgments, sheriffs were liable personally.369 It was not uncommon for a sheriff to find himself in jail as a debtor for failing to satisfy judgments against him.370 Even punitive damages against officers ‚” long disfavored by modern courts with regard to municipal liability ‚” were deemed proper and normal under the law of the Framers.371

Unlike the early constables, uniformed police officers were generally introduced upon the American landscape by their oaths alone and without bonds. Their municipal employers (hence, the taxpayers) were on the hook for their civil liabilities. Although courts tended to treat police identically to bonded officials,372 their susceptibility to civil redress was much lower. This change in the law of policing had the effect of depriving Americans of remedies for Fourth Amendment (and other) violations.373 The evil that now pervades criminal justice ‚” swarms of officers unaccountable in court either criminally or civilly ‚” was the very evil that the Founders sought to remedy in the late eighteenth century.374

DEVELOPMENT OF IMMUNITIES

But immunities follow duties, and duties placed upon police by lawmakers have exploded since 1791.375 Immunities grew slowly, beginning with a slight deference to officer conduct so long as there was no bad faith, corruption, malice or “misbehavior,”376 and ending with broad qualified immunity.377 When the practice of professional policing arrived from England upon American shores (for the second time, actually, if we consider modern police to be akin to the “standing armies” of the Founders’ generation), cases began to enunciate a general deference to police conduct, permitting that the actions of officers in carrying out their duties “not to be harshly judged.”378 Appellate courts began to reverse jury verdicts against officers upon new rules of law granting privileges unknown to private individuals.379

THE LOSS OF PROBABLE CAUSE, AND THE ONSET OF PROBABLE SUSPICION

Probable cause for the issuance of warrants has also become less strict.380 The Supreme Court regarded hearsay evidence as insufficient to constitute probable cause for seventeen years in the first half of the twentieth century,381 but has since given police free reign to construct probable cause in whatever way they deem proper. Instead of probability that a crime has been committed, the courts now require only some possibility, a relaxed standard that “robs [probable cause] of virtually all operative significance.”382 This watered-down “probable cause” for the issuance of ex parte warrants would have shocked the Founders.383

At common law, one could sue and recover damages from a private person who swore out a false or misleading search warrant affidavit.384 In contrast, few modern officers will ever have to account for lies on warrant applications so long as they couch their “probable cause” in unprovables. “Anonymous citizen informants,”385 material omissions and misrepresentations,386 irrelevant or prejudicial information,387 and even outright falsities are now common fixtures of police-written search warrant applications.388 For years, Boston police simply made up imaginary informants to justify searches and seizures.389 Police themselves refer to the phenomenon as “testilying” ‚” an aspect of normal police work regarded as “an open secret” among principle players of the criminal justice systern.390

POLICE AND THE “AUTOMOBILE EXCEPTION”

The courts have been particularly unkind to Fourth Amendment protections in the context of motor vehicle travel. Since the 1920s, Fourth Amendment jurisprudence has allowed for a gaping and ever-widening exception to the warrant requirement with regard to the nation’s roadways.391 Today, police force untold millions of motorists off the roads each year to be searched or scrutinized without judicial warrant of any kind.392 Any police officer can generally find some pretext to justify a stop of any automobile.393 In effect, road travel itself is subject to a near total level of police control,394 a phenomenon that would have confounded the Framers, who treated seizures of wagons, horses and buggies as subject to the same constraints as seizures of other property.395

The courts have laid down such a malleable latticework of exceptions in favor of modern police that virtually any cop worth his mettle can adjust his explanations for a search to qualify under one exception or another. When no exception applies, police simply lie about the facts.396 “Judges regularly choose to accept even blatantly unbelievable police testimony.”397 The practice on the streets has long been for police to follow their hunches, seek entrance at every door, and then attempt to justify searches after the fact.398 Justice Robert Jackson observed in 1949 that many unlawful searches of homes and automobiles are never revealed to the courts or the public because the searches turn up nothing.399

ONE EXCEPTION: THE EXCLUSIONARY RULE?

Conventional wisdom suggests there is one important exception to the long decline of Fourth Amendment protections: the exclusionary rule. Since 1914, the Supreme Court has required the exclusion of evidence seized in violation of the Fourth Amendment from being used against a defendant in federal court.400 In 1961, this rule was applied to the states in Mapp v. Ohio.401 Shortly thereafter, the Supreme Court expanded the exclusionary rule to other protections such as the Fifth and Sixth Amendments in cases such as Miranda v. Arizona.402

Textualists and originalists have lobbed a steady stream of vitriol against the exclusionary rule for decades. No enunciation of such a rule, say these critics, can be found in the writings or statements of the Framers.403 Moreover, say such critics, the rule places a heavy burden on the efficiency of police (but simultaneously, somehow, fails to deter them in any way), and unfairly frees a small but not insignificant percentage of “guilty” offenders.404 So-called “conservative” legal scholars remember the Warren Court’s imposition of the exclusionary rule upon the states in the 1960s as a bare-knuckled act of judicial activism405 and argue that the Court “[took] it upon itself, without constitutional authorization, to police the police.”406

The Miranda and Mapp decisions provoked an onslaught of hostility by police organizations and their sympathizers that has not subsided decades later. High-ranking authorities (not the least of which were Justices Harlan and White, who dissented in Miranda) wrote that such decisions put society at risk from criminals.407 The Miranda rule, according to Justice White, would force “those who rely on the public authority for protection” to “engage in violent self-help with guns, knives and the help of their neighbors similarly inclined.”408 Even more outraged was the chief of police of Garland, Texas, who responded, “We might as well close up shop.”409

Yet the dire predictions that followed the Miranda and Mapp decisions were ultimately proved false.410 Rather than returning to what Justice White decried as “violent self-help” (as the Constitution’s framers truly intended), America continued its slide into increased dependence upon police for the most mundane aspects of law enforcement. If anything, reliance upon police for personal protection has increased since the 1960s.

I propose an altogether different interpretation of Mapp, Miranda, and some of the Warren Court’s other criminal procedure decisions. While I concede that this jurisprudence grossly violated certain constitutional principles (most importantly, principles of federalism), I submit that such rulings were attempts to bring constitutional law into accord with the alien threat posed by modern policing. Professional policing’s arrival upon the American scene required that the Court’s Bill of Rights jurisprudence splinter a dozen ways to accommodate it. Thus, Mapp and Miranda were an application of brakes to a foreign element (modern policing) that is itself without constitutional authorization.

In many ways, the Warren Court was the first U.S. Supreme Court to face criminal procedural questions squarely in light of the advent of professional policing. The Miranda and Mapp decisions, according to noted criminal law expert David Rudovsky, “at least implicitly acknowledged widespread police and prosecutorial abuse,”411 a phenomenon that would have bedeviled the Framers. Mapp’s holding was brought on more by the need to make the criminal justice system work fairly than by any other consideration.412 The same realities gave way to the rule of Bivens v. Six Narcotics Agents, in 1971, in which the Court conceded that an agent acting illegally in the name of the government possesses a far greater capacity for harm than any individual trespasser exercising his own authority (as prevailed as the common form of law enforcement in 1791).413

Furthermore, the notion that exclusion cannot be justified under an originalist approach is not nearly as well-founded as its harshest critics suggest.414 Critics of the rule point to the 1914 case of Weeks v. United States415 as the rule’s debut in Supreme Court jurisprudence.416 However, the rule actually debuted in dicta in the 1886 case of Boyd v. United States.417 Even this seemingly late date of the rule’s debut can be attributed to the Court’s lack of criminal appellate jurisdiction until the end of the nineteenth century.418 The reality is that Boyd, the Court’s first suggestion of the rule, represents, for practical purposes, the very first Fourth Amendment case decided by the Supreme Court. The exclusionary rule thus has a better pedigree than it is credited with.419

THE FIFTH AMENDMENT

In a previous article, I described the limitation of common law grand jury powers by Rule 6 of the Federal Rules of Criminal Procedure as an unconstitutional infringement of the Fifth Amendment Grand Jury Clause.420 The fact that most criminal charges are now initiated not by crime victims but by armed state agents who serve the state’s interests represents a drastic alteration of Founding-era criminal procedure.421 The suppression of grand jurors’ lawful powers belies the intent of the Constitution that law enforcement officials be subject to stringent oversight by the citizenry through grand juries. Modern policing, in effect, acts as a middleman between the people and the judicial branch of government that was never contemplated by the Framers.

The Fifth Amendment also prohibits the compulsion of self-incriminating testimony.422 Various competing interpretations ebbed and flowed from this provision until 1966, when the Supreme Court held that police are required to actually tell suspects about the Fifth and Sixth Amendments’ protections before interrogating them.423 The sheer volume of criticism by police organizations of the Miranda ruling over the next three decades indicates the strong state interest in keeping the Constitution’s protections concealed from the American public.

Modem police interrogation could scarcely have been imagined by the Framers who met in Philadelphia in the late eighteenth century. Police tactics such as falsifying physical evidence, faking identification lineups, administering fake lie detector tests and falsifying laboratory reports to obtain confessions are methods developed by the professionals of the twentieth century. 424 Against such methods a modern suspect stands little chance of keeping his tongue. Like the exclusionary rule and the entrapment defense, the Miranda rule operates as an awkward leveling device between the rights of American citizens and their now-leviathanic government.

In 2000, the Supreme Court upheld (indeed, “constitutionalized”) the Miranda rule in the face of widespread predictions that the police-favoring Rehnquist majority would abandon the rule.425 The Court delivered an opinion recognizing that “the routine practices of [police] interrogation [is] itself a relatively new development.”426 The Miranda requirement, according to Justice Rehnquist, was therefore justified as an extension of due process ‚” a far more sustainable course than one extending from the wording of the Fifth and Sixth Amendments.427

The Dickerson decision illustrates the increasingly awkward peace between the Bill of Rights and the phenomenon of modern policing. Because the Framers did not contemplate wide-scale execution of government power through paid, full-time agents, modern jurisprudence reconciling the Bill of Rights with today’s police practices seems increasingly farfetched. Justices Scalia and Thomas dissented from the Dickerson majority with well-founded textualist objections, arguing that the majority was writing a “prophylactic, extraconstitutional Constitution” to protect the public from police.428 Yet in light of the extraconstitutional nature of modern police, the Dickerson majority opinion is no less consistent with the Framers’ constitutional intent.

DUE PROCESS

Due process of law depends upon assurances that a level playing field exists between rival adversaries pitted against each other.429 The constitutional design pitted a citizen defendant against his citizen accuser before a jury of his (the defendant’s) peers. The state provided only the venue, the process, and assurances that the rule of law would govern the outcome. By comparison, a modern defendant is hardly pitted in a fair fight, facing the vast treasury and human resources of the state. While the criminal justice system of the Founding era was victim-driven, and thus self-limiting, today’s system is fueled by a professional army of police who measure their success in numbers of arrests and convictions.430

Police themselves often ignore standard concepts of fairness, official regulations, and statutes in their war on crime.431 Police agencies have even been known to develop institutional means to circumvent court attempts to equalize the playing field.432 In the face of unwanted publicity or controversy surrounding police brutality cases, police departments have been known to release arrest records to the media to vilify victims of police misconduct.433

The police model of law enforcement tilts the entire system of criminal justice in favor of the state. The police, though supposedly neutral investigators, are in reality an arm of the prosecutor’s office.434 Where police secure a crime scene for investigation, they in fact secure it for the prosecution alone and deny access to anyone other than the prosecution. A suspect or his defense attorneys often must obtain court permission to view the scene or search for evidence. Only such exculpatory evidence as by accident falls into the hands of the prosecution need be revealed to the suspect or defendant.435 In cases where police misconduct is an issue, police use their monopoly over the crime scene to prepare the evidence to suit their version of events.436

Mapp, Miranda and Dickerson notwithstanding, the tendency of modern courts to work around police practices, rather than nullify or restrain them, poses the very threat to due process of law the Framers saw as most dangerous to liberty. Instead of viewing the system as a true adversarial contest with neutral rules, judges and lawmakers have decided that catching (nonpolice) lawbreakers is more important than maintaining a code of integrity.437 The “sporting theory of criminal justice,” wrote Justice Warren Burger, “has been experiencing a decline in our jurisprudence.”438 In its place is a system where the government views the nonpolice lawbreaker as a threat to its authority and places top priority on defeating him in court.439

ENTRAPMENT

Abandonment of victim-driven, mostly private prosecution has led to consequences the Framers could never have predicted and would likely never have sanctioned. Even in the most horrific examples of colonial criminal justice (and there were many), defendants were rarely if ever entrapped into criminal activity. The development of modern policing as an omnipotent power of the state, however, has necessitated the simultaneous development of complicated doctrines such as entrapment and “outrageous government conduct” as counterweights.

It was not until the late nineteenth century that any English or American case dealt with entrapment as a true defense to a criminal charge.440 (The case law until then had been virtually devoid of police conduct issues altogether).441 Beginning in 1880, English case law slowly became involved with phenomena such as state agents inducing suspects to sell without proper certificates,442 persuading defendants to supply drugs to terminate pregnancy,443 and enticing people to commit other victimless crimes. Dicta in some English cases expressed outrage that police might someday “be told to commit an offense themselves for the purpose of getting evidence against someone.”444 Police who commit such offenses, said one English court, “ought also to be convicted and punished, for the order of their superior would afford no defense.”445

Entrapment did not arise as a defense in the United States until 1915, when the conduct of government officers for the first time brought the issue before the federal courts. In Woo Wai v. United States, the Ninth Circuit overturned a conviction of a defendant for illegally bringing Chinese persons into the United States upon evidence that government officers had induced the crime.446 Growth in police numbers and “anti-crime” warfare was so rapid that in 1993, the Wyoming Supreme Court wrote that entrapment had “probably replaced ineffectiveness of defense counsel and challenged conduct of prosecutors as the most prevalent issues in current appeals.”447

The growth of the use of entrapment by the state raises troubling questions about the nature and purposes of American government. Rather than “serving and protecting” the public, modern police often serve and protect the interests of the state against the liberties and interests of the people. A significant amount of police brutality, for example, seems aimed at mere philosophical, rather than physical, opposition. Police dominance over the civilian (rather than service to or protection of him) is the “only truly iron and inflexible rule” followed by police officers.448 Thus, any person who defies police faces virtually certain negative repercussions, whether a ticket, a legal summons, an arrest, or a bullet.449 One study found nearly half of all illegal force by police occurred in response to mere defiance of an officer rather than a physical threat.450

In the political sphere, police serve the interests of those in power against the rights of the public. New York police of the late nineteenth century were found by the New York legislature to have committed “almost every conceivable crime against the elective franchise,” including arresting and brutalizing opposition-party voters, stuffing ballot boxes, and using “oppression, fraud, trickery [and] crime” to ensure the dominant party held the city.451 In the twentieth century, J. Edgar Hoover’s FBI agents burglarized hundreds of offices of law-abiding, left-wing political parties and organizations, “often with the active cooperation or tacit consent of local police.”452 The FBI has also spent thousands of man-hours surveiling and investigating writers, playwrights, directors and artists whose political views were deemed a threat to the interests of the ruling political establishment.453

Police today are a constant agent on behalf of governmental power. Both in the halls of legislatures and before the courts, police act as lobbyists against individual liberties.454 Police organizations, funded by monies funneled directly from police wages, lobby incessantly against legislative constraints on police conduct.455 Police organizations also file amicus curie briefs in virtually every police procedure case that goes before the Supreme Court, often predicting dire consequences if the Court rules against them. In 2000, for example, the police lobby filed amicus briefs in favor of allowing police to stop and frisk persons upon anonymous tips, warning that if the Court ruled against them, “the consequence for law enforcement and the public could be increased assaults and perhaps even murders.”456

CONCLUSION

The United States of America was founded without professional police. Its earliest traditions and founding documents evidenced no contemplation that the power of the state would be implemented by omnipresent police forces. On the contrary, America’s constitutional Framers expressed hostility and contempt for the standing armies of the late eighteenth century, which functioned as law enforcement units in American cities. The advent of modern policing has greatly altered the balance of power between the citizen and the state in a way that would have been seen as constitutionally invalid by the Framers. The implications of this altered balance of power are far-reaching, and should invite consideration by judges and legislators who concern themselves with constitutional questions.


* Roger Isaac Roots, J.D., M.C.J., graduated from Roger Williams University School of Law in 1999, Roger Williams University School of Justice Studies in 2001, and Montana State University-Billings (B.S., Sociology) in 1995. He is a former federal prisoner and founder of the Prison Crisis Project, a not-for-profit law and policy think tank based in Providence, Rhode Island. He is grateful to Duane Horton of Portsmouth, Rhode Island for his scrupulous proof-reading efforts and thoughtful insights.

1‚ As of June, 1996, there were more than 700,000 full- and part-time professional state-sworn police in the United States.‚ See‚ BUREAU OF JUSTICE STATISTICS, CENSUS OF STATE AND LOCAL LAW ENFORCEMENT AGENCIES, 1996 (1998)‚ available at‚ <http://virlib.ncjrs.org/Statistics.asp>. Figures for earlier decades and centuries are difficult to obtain, but a few indicators suggest that the ratio of police per citizen has grown by at least four thousand percent. In 1816, the British Parliament reported that there was at that time one constable for every 18,187 persons in Great Britain.‚ See‚ Jerome Hall,Legal and Social Aspects of Arrest Without a Warrant, 49 HARVARD L. REV. 566, 582 (1936). Conventional wisdom would suggest that American ratios were, if anything, lower. Today there is approximately one officer for every 386 Americans.

2‚ The City of Los Angeles, for example, spends almost half (49.1%) of its annual discretionary budget on police but only 17.7% on fire and 14.8% on public works.‚ See City of Los Angeles 1999-2000 Budget Summary‚ (visited Dec. 2000) <http://www.cityofla.org/cao/bud9900.pdf>. The City of Chicago spends over forty percent of its annual budget on police.‚ See Chicago Budget 1999‚ (visited Dec. 2000) <http://www.ci.chi.il.us/mayor/Budgetl999/sld011.htm> (pie chart). Seattle spends more than $150 million, or 41 percent of its annual budget, on police and police pensions.‚ See‚ City of Seattle 2000 Proposed Budget (visited Dec. 2000) <http://www.ci.seattle.wa.us/budget>. The City of New York is one exception, due primarily to New York State’s unique system for funding education. Police and the administration of justice constitute the third largest segment, or twelve percent, of the City’s budget, after education and human resources.‚ See‚ THE CITY OF NEW YORK, EXECUTIVE BUDGET, FISCAL YEAR 2000 1 (2000) (pie chart).

3‚ See‚ Carol S. Steiker,‚ Second Thoughts About First Principles, 107 HARV. L. REV. 820, 830 (1994) (saying twentieth century police and “our contemporary sense of ‘policing’ would be utterly foreign to our colonial forebears”).

4‚ See id.

5‚ See id. at 831 (saying the sole monetary reward for such officers was occasional compensation by private individuals for returning stolen property).

6‚ See‚ CHARLES SILBERMAN, CRIMINAL VIOLENCE, CRIMINAL JUSTICE 314 (1978). The City of Boston, for example, enacted an ordinance requiring drafted citizens to walk the streets “to prevent any danger by fire, and to see that good order is kept.”‚ Id.

7‚ C.f. id. (mentioning that cops’ role of maintaining order predates their role of crime control).

8‚ But see, e.g., Steiker,‚ supra‚ note 3, at 824 (saying the “invention … of armed quasi-military, professional police forces, whose form, function, and daily presence differ dramatically from that of the colonial constabulary, requires that modern-day judges and scholars rethink” Fourth Amendment remedies).

9‚ See, e.g., ROBERT H. BORK, SLOUCHING TOWARDS GOMORRAH: MODERN LIBERALISM AND AMERICAN DECLINE 104 (1996) (criticizing Supreme Court rulings that have “steadily expanded” the rights of criminals and placed limitations upon police conduct).

10‚ Cf. E.X. BOOZHIE, THE OUTLAW’S BIBLE 15 (1988) (stating the true mission of police is to protect the status quo for the benefit of the ruling class).

11‚ As a textual matter, the Constitution grants authority to the federal government to define and punish criminal activity in only five instances. Article I grants Congress power (1) “[t]o provide for the Punishment of counterfeiting the Securities and current Coin of the United States,” art. I, ƒ¯‚¿‚½ 8, cl. 6; (2) “[t]o define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations,”‚ id, cl. 10; (3) “[t]o make Rules for the Government and Regulation of the land and naval Forces,”‚ id. at cl. 14; (4) “[t]o exercise exclusive Legislation in all Cases whatsoever, over” the District of Columbia and federal reservations.‚ id. at cl. 17;‚ see also‚ Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 426 (1821) (“Congress has a right to punish murder in a fort, or other place within its exclusive jurisdiction; but no general right to punish murder committed within any of the states”). Likewise, (5) Article III defines the crime of “Treason against the United States” and grants to Congress the “Power to declare [its] Punishment….” U.S. CONST. art. III, ƒ¯‚¿‚½ 3.

12‚ Several early constitutions expressed a right of citizens “to be protected in the enjoyment of life, liberty and property,” and therefore purported to bind citizens to contribute their proportion toward expenses of such protection.‚ See‚ DELAWARE DEC. OF RIGHTS of Sept. 11, 1776, ƒ¯‚¿‚½ 10; PA. CONST. of Sept. 28, 1776, Dec. of Rights, ƒ¯‚¿‚½ VIII; VT. CONST. of July 8, 1777, Chap. 1, ƒ¯‚¿‚½ IX. Other typical provisions required that the powers of government be exercised only by the consent of the people,‚ see, e.g., N.C. CONST. of Dec. 18, 1776, ƒ¯‚¿‚½ V, and that all persons invested with government power be accountable for their conduct.‚ See‚ MD. CONST. of Nov. 11, 1776, ƒ¯‚¿‚½ IV.

13‚ The constitutions of several early states expressed the intent that citizens were obligated to carry out law enforcement duties.‚ See, e.g., DELAWARE DEC. OF RIGHTS of Sept. 11, 1776, ƒ¯‚¿‚½ 10 (providing every citizen shall yield his personal service when necessary, or an equivalent); N.H. CONST. of June 2, 1784, Part I, art. I, ƒ¯‚¿‚½ XII (providing that every member of the community is bound to “yield his personal service when necessary, or an equivalent”); VT. CONST. of July 8, 1777, Chap. 1, ƒ¯‚¿‚½ IX (providing every member of society is bound to contribute his proportion towards the expenses of his protection, “and to yield his personal service, when necessary”).

14‚ C.f. JAMES BOVARD, LOST RIGHTS: THE DESTRUCTION OF AMERICAN LIBERTY 51 (1st‚ ed. 1994) (discussing Revolution-era perception that the law was a means to restrain government and to secure rights of citizens).

15‚ Originally, all criminal procedure fell under the rule of private vengeance. A victim or aggrieved party made a direct appeal to county authorities to force a defendant to face him.

See‚ ARTHUR TRAIN, THE PRISONER AT THE BAR 120 n. (1926). From these very early times, “grand” or “accusing” juries were formed to examine the accusations of private individuals.‚ Id. at 121 n. Although the accusing jury frequently acted as a trial jury as well, it eventually evolved into a separate body that took on the role of accuser on behalf of aggrieved parties. It deliberated secretly, acting on its members’ own personal information and upon the application of injured parties.‚ Id. at 124 n.

16‚ In the early decades of American criminal justice, criminal cases were hardly different from civil actions, and could easily be confused for one another if “the public not being joined in it.” Clark v. Turner, 1 Root 200 (Conn. 1790) (holding action for assault and battery was no more than a civil case because the public was not joined). It was apparently not unusual for trial judges themselves to be confused about whether a case was criminal or civil, and to make judicial errors regarding procedural differences between the two types of cases.‚ See‚ Meacham v. Austin, 5 Day 233 (Conn. 1811) (upholding lower court’s dismissal of criminal verdict because the case’s process had been consistent with civil procedure rather than criminal procedure).

17‚ See‚ Respublica v. Griffiths, 2 Dall. 112 (Pa. 1790) (involving action by private individual seeking public sanction for his prosecution).

18‚ See, e.g., Smith v. State, 7 Tenn. 43 (1846) (using the term prosecutor to describe a private person); Plumer v. Smith, 5 N.H. 553 (1832) (same); Commonwealth v. Harkness, 4 Binn. 193 (Pa. 1811) (same).

19‚ See‚ Harold J. Krent,‚ Executive Control Over Criminal Law Enforcement: Some Lessons From History, 38 AM. U. L. REV. 275, 281-90 (1989) (saying that any claim that criminal law enforcement is a ‘core’ or exclusive executive power is historically inaccurate and therefore the Attorney General need not be vested with authority to oversee or trigger investigations by the independent counsel).

20‚ See‚ Respublica v. Griffiths, 2 Dall. 112 (Pa. 1790) (holding the Attorney General must allow his name to be used by the prosecutor).

21‚ Private prosecutors generally had to pay the costs of their prosecutions, even though the state also had an interest.‚ See‚ Dickinson v. Potter, 4 Day 340 (Conn. 1810). Government attorneys general took over the prosecutions of only especially worthy cases and pursued such cases at public expense.‚ SeeWaldron v. Turtle, 4 N.H. 149, 151 (1827) (stating if a prosecution is not adopted and pursued by the attorney general, “it will not be pursued at the public expense, although in the name of the state”).

22‚ See‚ State v. Bruce, 24 Me. 71, 73 (1844) (stating a threat by crime victim to prosecute a supposed thief is proper but extortion for pecuniary advantage is criminal).

23‚ See‚ Plumer v. Smith, 5 N.H. 553 (1832) (holding promissory note invalid when tendered by a criminal defendant to his private prosecutor in exchange for promise not to prosecute).

24‚ Shaw v. Reed, 30 Me. 105, 109 (1849).

25‚ See‚ In re April 1956 Term Grand Jury, 239 F.2d 263 (7th Cir. 1956).

26‚ See‚ Goodman v. United States, 108 F.2d 516 (9th Cir. 1939).

27‚ See‚ Krent,‚ supra‚ note 19, at 293.

28‚ C.f. Ellen D. Larned, 1 History of Windham County, Connecticut 272-73 (1874) (recounting attempts by Windham County authorities in 1730 to arrest a large group of rioters who broke open the Hartford Jail and released a prisoner).

29‚ Id. at 273.

30‚ See‚ Buckminster v. Applebee, 8 N.H. 546 (1837) (stating the sheriff has a duty to raise the posse to aid him when necessary).

31‚ See‚ Waterbury v. Lockwood, 4 Day 257, 259-60 (Conn. 1810) (citing English cases).

32‚ See‚ Jerome Hall,‚ Legal and Social Aspects of Arrest Without A Warrant, 49 HARV. L. REV. 566, 579 (1936).

33‚ Barrington v. Yellow Taxi Corp., 164 N.E. 726, 727 (N.Y. 1928).

34‚ See‚ Eustis v. Kidder, 26 Me. 97, 99 (1846).

35‚ By the early 1900s, courts held that civilians called into posse service who were killed in the line of duty were entitled to full death benefits.‚ See‚ Monterey County v. Rader, 248 P. 912 (Cal. 1926); Village of West Salem v. Industrial Commission, 155 N.W. 929 (Wis. 1916).

36‚ United States v. Rice, 27 Fed. Cas. 795 (W.D.N.C. 1875).

37‚ The Constitution is not without provisions for criminal procedure. Indeed, much of the Bill of Rights is an outline of basic criminal procedure.‚ See‚ LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW 118 (2d ed. 1985). But these provisions represent enshrinements of individual liberties rather than government power. The only constitutional provisions with regard to criminal justice represent‚ barriers‚ to governmental power, rather than provisions for that power. Indeed, the Founders’ intent to protect individual liberties was made clear by the language of the Ninth Amendment and its equivalent in state constitutions of the founding era. The Ninth Amendment, which declares that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” provides a clear indication that the Framers assumed that persons may do whatever is not justly prohibited by the Constitution rather than that the government may do whatever is not justly prohibited to it.‚ See‚ Randy E. Barnett,‚ Introduction: James Madison’s Ninth Amendment, in‚ THE RIGHTS RETAINED BY THE PEOPLE 43 (Randy E. Barnett ed., 1989).

38‚ See‚ JAMES S. CAMPBELL ET AL., LAW AND ORDER RECONSIDERED: REPORT OF THE TASK FORCE ON LAW AND LAW ENFORCEMENT TO THE NATIONAL COMMISSION ON THE CAUSES AND PREVENTION OF VIOLENCE 450 (1970) (discussing survey by the President’s Commission on Law Enforcement and Administration of Justice).

39‚ The term “policing” originally meant promoting the public good or the community life rather than preserving security.‚ See‚ Rogan Kersh et al.,‚ “More a Distinction of Words than Things”: The Evolution of Separated Powers in the American States, 4 ROGER WILLIAMS U. L. REV. 5, 21 (1998).

40‚ See, e.g., N.C. CONST. of Dec. 18, 1776, Dec. of Rights, ƒ¯‚¿‚½ II (providing that people of the state have a right to regulate the internal government and “police thereof); PA. CONST. of Sept. 28, 1776, Dec. of Rights, art. III (stating that the people have a right of “governing and regulating the internal police of [the people]”).

41‚ See‚ Police Jury v. Britton, 82 U.S. (15 Wall.) 566 (1872). The purpose of such juries was 1) to police slaves and runaways, (2) to repair roads, bridges, and other infrastructure, and (3) to lay taxes as necessary for such acts.‚ Id. at 568.‚ See also‚ BLACK’S LAW DICTIONARY 801 (abridged 6th‚ ed. 1991).

42‚ When Blackstone wrote of offenses against “the public police and economy” in 1769, he meant offenses against the “due regulation and domestic order of the kingdom” such as clandestine marriage, bigamy, rendering bridges inconvenient to pass, vagrancy, and operating gambling houses. 4 WILLIAM BLACKSTONE, COMMENTARIES 924-27 (George Chase ed., Baker, Voorhis& Co. 1938) (1769).

43‚ See, e.g., Wolf v. Colorado, 338 U.S. 25,27-28 (1948) (proclaiming that “security of one’s privacy against arbitrary intrusion by the police” is at the core of the Fourth Amendment (clearly a slight misstatement of the Founders’ original perception)).

44‚ See‚ Roger Lane,‚ Urbanization and Criminal Violence in the 19th‚ Century: Massachusetts as a Test Case, in‚ NATIONAL COMMISSION ON THE CAUSES AND PREVENTION OF VIOLENCE, VIOLENCE IN AMERICA: HISTORICAL AND COMPARATIVE PERSPECTIVES 445, 451 (Graham & Gurr dir., 1969) (saying citizens were traditionally supposed to take care of themselves, with help of family, friends, or servants “when available”).

45‚ See, e.g., Kennard v. Burton, 25 Me. 39 (1845) (involving collision between two wagons).

46‚ Lane,‚ supra‚ note 44, at 451.

47‚ ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 96 (J.P. Mayer ed., Harper Perennial Books 1988) (1848).

48‚ Id.

49‚ See id. at 96.

50‚ See‚ Pauline Maier,‚ Popular Uprisings and Civil Authority in Eighteenth-Century America, 27 WM. & MARY Q. 3-35 (1970).

51‚ DE TOCQUEVILLE,‚ supra‚ note 47, at 72.

52‚ Lane,‚ supra‚ note 44, at 450.

53‚ See id.

54‚ Id.

55‚ See id. at 451.

56‚ See, e.g., Lamb v. Day, 8 Vt. 407 (1836) (involving suit against constable for improper execution of civil writ); Tomlinson v. Wheeler, 1 Aik. 194 (Vt. 1826) (involving sheriff’s neglect to execute civil judgment); Stoyel v. Edwards, 3 Day 1 (1807) (involving sheriffs execution of civil judgment).

57‚ If the modern police profession has a father, it is Sir Robert Peel, who founded the Metropolitan Police of London in 1829.‚ See‚ SUE TITUS REID, CRIMINAL JUSTICE: BLUEPRINTS 58 (5th‚ ed. 1999) (attributing the founding of the first modern police force to Peel). Peel’s uniformed officers ‚” nicknamed ‘Bobbies’ after the first name of their founder ‚” operated under the direction of a central headquarters (Scotland Yard, named for the site once used by the Kings of Scotland as a residence), walking beats on a full-time basis to prevent crime.‚ See id. Less than three decades later, Parliament enacted a statute requiring every borough and county to have a London-type police force.‚ See id.

The ‘Bobbie’ model of policing caught on more slowly in the United States, but by the 1880s most major American cities had adopted some type of full-time paid police force.‚ See id. at 59 (noting that the county sheriff system continued in rural areas).

58‚ See‚ LAWRENCE M. FRIEDMAN, CRIME AND PUNISHMENT IN AMERICAN HISTORY 151-52 (1993) (citation omitted).

59‚ Id. at 151.

60‚ See id. at 152 (describing early police use of station houses as homeless shelters for the poor). This same type of public problem-solving still remains a large part of police work. Police are called upon to settle landlord-tenant disputes, deliver emergency care, manage traffic, regulate parking, and even to respond to alleged haunted houses.‚ See id. at 151 (recounting 1894 alleged ghost incident in Oakland, California). Police continue to provide essential services to communities, especially at night and on weekends when they are the only social service agency.‚ See‚ SILBERMAN,‚ supra‚ note 6, at 321.

61‚ See‚ GARRY WILLS, A NECESSARY EVIL: A HISTORY OF AMERICAN DISTRUST OF GOVERNMENT 248 (1999) (citation omitted).

62‚ See‚ REID,‚ supra‚ note 57, 65 (5th‚ ed. 1999).

63‚ See‚ JEROME H. SKOLNICK & JAMES J. FYFE, ABOVE THE LAW: POLICE AND THE EXCESSIVE USE OF FORCE 129 (1993).

64‚ See id.

65‚ See id. at 130.

66‚ See‚ E.X. BOOZHIE, THE OUTLAW’S BIBLE 15 (1988).

67‚ Private prosecution was not without costs to taxpayers. The availability of free courtrooms to air grievances tended to promote litigation. In 1804, the Pennsylvania legislature acted to allow juries to make private prosecutors pay the costs of prosecution in especially trifling cases. Act of Dec. 8, 1804 PL3, 4 Sm L 204 (repealed 1860). Private persons were thereafter liable for court costs if they omitted material exculpatory information from a grand jury, thereby causing a grand jury to indict without knowledge of potential defenses.‚ See‚ Commonwealth v. Harkness, 4 Binn. 194 (Pa. 1811). This protection, like many others, was lost when police and public prosecutors took over the criminal justice system in the twentieth century.‚ See‚ United States v. Williams, 504 U.S. 36 (1992) (holding prosecutor has no duty to present exculpatory evidence to grand jury).

68‚ In the American constitutional scheme, the states have ‘general jurisdiction,’ meaning they may regulate for public health and welfare and enact whatever means to enforce such regulation as is necessary and constitutionally proper.‚ See, e.g., Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985), National League of Cities v. Usery, 426 U.S. 833 (1976) (both standing for the general proposition that states have constitutional power to provide for protection, health, safety, and quality of life for their citizens).‚ See also‚ Lawrence Tribe, American Constitutional Law, ƒ¯‚¿‚½ƒ¯‚¿‚½ 6-3, 7-3 (2d ed. 1988). State and municipal police forces can therefore be viewed as constitutional to the extent they actually carry out the lawful enactments of the state.

69‚ See infra‚ notes 285-398 and their accompanying text.

70‚ See‚ Silas J. Wasserstrom,‚ The Incredible Shrinking Fourth Amendment, 21 AM. CRIM. L. REV. 257, 347 (1984).

71‚ See‚ Jerome Hall,‚ Legal and Social Aspects of Arrest Without A Warrant, 49 HARV. L. REV. 566, 567 (1936).

72‚ See id.

73‚ See id. at 567-71 (discussing earliest scholarly references to the distinction). A 1936 Harvard Law Review article suggested the distinction is a false one owed to improper marshalling of scholarship.‚ See id. (writing of “the general misinterpretation” resulting from a 1780 case in England).

74‚ See id. at 575 n.44 (citing the case of‚ Beckwith v. Philby, 6 B. & C. 635 (K. B. 1827)).

75‚ See id. at 571-72. Although official right was apparently considered somewhat greater than that of private citizens during much of the 1700s, the case law enunciates no support for any such distinction until‚ Rohan‚ v.‚ Sawin, 59 Mass. (5 Cush.) 281 (1850). It was apparently already the common practice of English constables to arrest upon information from the public in the 1780’s.‚ See id. at 572. The “earlier requirement of a charge of a felony had already been entirely forgotten” in England by the early nineteenth century.‚ Id. at 573. According to Hall, the only real distinction in practice in the early nineteenth century was that officers were privileged to draw their suspicions from statements of others, whereas private arrestors had to base their cause for arrest on‚ their own‚ reasonable beliefs.‚ See id. at 569.

76‚ See‚ Rohan v. Sawin, 59 Mass. (5 Cush.) 281, 285 (1850).

77‚ See id.

78‚ See‚ 18 U.S.C. ƒ¯‚¿‚½ 925 (a)(l) (2000) (exempting government officers from federal firearm disabilities).

79‚ See, e.g., CAL. PENAL CODE ƒ¯‚¿‚½ 468 (West 1985) (releasing police from liability for possession of sniper scopes and infrared scopes).

80‚ See, e.g., FLA. STAT. CH. 338. 155 (1990).

81‚ See, e.g., FLA. STAT. CH. 320.025 (1990) (allowing confidential auto registration for police).

82‚ See‚ ARK. CODE ANN. ƒ¯‚¿‚½ 20-22-703 (Michie 2000).

83‚ See‚ 18 U.S.C. ƒ¯‚¿‚½ 1114 (amended 1994) (providing whoever murders a federal officer in first degree shall suffer death).

84‚ See‚ CAL. PENAL CODE ƒ¯‚¿‚½ 832.9 (West 1995).

85‚ See, e.g., CAL. HEALTH & SAFETY CODE ƒ¯‚¿‚½ƒ¯‚¿‚½ 199.95-199.99 (West 1990) (mandating HIV testing for persons charged with interfering with police officers whenever officers request).

86‚ See‚ Electronic Communications Privacy Act, 18 U.S.C. 2511 (2000); United States v. Leon, 104 S. Ct. 3405 (1984).

87‚ See‚ Williams v. Poulos, 11 F.3d 271 (lst‚ Cir. 1993).

88‚ See, e.g., People v. Curtis, 450 P.2d 33, 35 (Cal. 1969) (speaking of the “[g]eneral acceptance” by courts of the elimination of the right to resist unlawful arrest).

89‚ See‚ HERBERT J. STORING, WHAT THE ANTI-FEDERALISTS WERE FOR: THE POLITICAL THOUGHT OF THE OPPONENTS OF THE CONSTITUTION 53 (1981). The statements of James Madison when introducing the proposed amendments to the Constitution before the House of Representatives, June 8, 1789, also support such a reading of the Bill of Rights. House of Representatives, June 8, 1789 Debates,‚ reprinted in‚ THE ORIGIN OF THE SECOND AMENDMENT: A DOCUMENTARY HISTORY OF THE BILL OF RIGHTS 1787-1792 647, 657 (David E. Young, ed.) (2d ed. 1995) (stating “the great object in view is to limit and qualify the powers of Government”).

90‚ See‚ STORING,‚ supra‚ note 89, at 48.

91‚ See, e.g., MD. CONST. of 1776, art. I (declaring that “all government of right originates from the people, is founded in compact only, and instituted solely for the good of the whole”); MASS. CONST. of 1780, art. I (“All men are born free and equal, and have certain natural, essential, and unalienable rights”); N.H. CONST. of 1784, art. I (“All men are born equally free and independent”).

92‚ See‚ Coyle v. Hurtin, 10 Johns. 85 (N.Y. 1813).

93‚ See‚ Bad Elk v. United States, 177 U.S. 529 (1900).

94‚ See‚ Rex v. Gay, Quincy Mass. Rep. 1761-1772 91 (Mass. 1763) (acquitting assault defendant who beat a sheriff when sheriff attempted to arrest him pursuant to invalid warrant).

95‚ See Wolf v. Colorado, 338 U.S. 25, 30 n. 1, 31 n. 2 (1948) (citing cases upholding right to resist unlawful search and seizure).

96‚ See‚ Adams v. State, 48 S.E. 910 (Ga. 1904).

97‚ See‚ MD. CONST. of 1776, art. IV; N.H. Const. of 1784, art. X.

98‚ See, e.g., State v. Kutchara, 350 N.W.2d 924, 927 (Minn. 1984) (saying Minnesota law does not recognize right to resist unlawful arrest or search); People v. Curtis, 450 P.2d 33, 36 (Cal. 1969) (holding California law prohibits forceful resistance to unlawful arrest).

99‚ See, e.g., CAL. PENAL CODE ƒ¯‚¿‚½ 243 (criminalizing the resistance, delay or obstruction of an officer in the discharge of “any duty of his office”). CAL. PENAL CODE ƒ¯‚¿‚½ 834(a) (1957) (“If a person has knowledge … that he is being arrested by a peace officer, it is the duty of such person to refrain from using force or any weapon to resist such arrest”).

100‚ See, e.g., United States v. Charles, 883 F.2d 355 (5th‚ Cir. 1989) (excusing as harmless error the failure of officers executing warrant to have the warrant in hand during raid); United States v. Cafero, 473 F.2d 489, 499 (3d Cir. 1973) (holding failure to deliver copy of warrant to the party being searched or seized does not invalidate search or seizure in the absence of prejudice); Willeford v. State, 625 S.W.2d 88, 90 (Tex. App. 1981) (upholding validity of search and seizure before arrival of warrant). Not only has the requirement that officers show their warrant before executing it been eliminated, but the requirement that officers announce their authority and purpose before executing search warrants has been all but eliminated.‚ See‚ Richards v. Wisconsin, 570 U.S. 385 (1997) (eliminating requirement that officers be refused admittance before using force to enter the place to be searched in many cases).

101‚ See‚ William A. Schroeder,‚ Warrantless Misdemeanor Arrests and the Fourth Amendment, 58 MO. L. REV. 771 (1993) (discussing the erosion of requirements for arrest warrants in many jurisdictions).

102‚ See, e.g., Polk v. State, 142 So. 480, 481 (Miss. 1932) (striking down statute allowing warrantless arrest for misdemeanors committed outside an officer’s presence); Ex Parte Rhodes, 79 So. 462, 462-63 (Ala. 1918) (holding statute unconstitutional which allowed for warrantless arrest for out-of-presence misdemeanors).

103‚ See‚ Schroeder,‚ supra‚ note 101, at 793.

104‚ See‚ Thor v. Superior Court, 855 P.2d 375, 380 (Cal. 1993) (saying the developing consensus “uniformly recognizes” a patient’s right to control his own body, stemming from the “long-standing importance in our Anglo-American legal tradition of personal autonomy and the right of self-determination.”) (citations omitted). “For self-determination to have any meaning, it cannot be subject to the scrutiny of anyone else’s conscience or sensibilities.”‚ Id. at 385.

105‚ See‚ Michael v. Hertzler, 900 P.2d 1144, 1145 (Wyo. 1995) (stating if a statute reaches a fundamental interest, courts are to employ strict scrutiny in making determination as to whether enactment is essential to achieve compelling state interest).

106‚ “[Only] the gravest abuses, endangering paramount interests, give occasion for permissible limitation.” Thomas v. Collins, 323 U.S. 516, 530 (1945). A “compelling state interest” is defined as “[o]ne which the state is forced or obliged to protect.” BLACK’S LAW DICTIONARY 282 (6th‚ ed. 1990) (citing Coleman v. Coleman, 291 N.E.2d 530, 534 (1972)).

107‚ The American constitutional order grants to every individual a privilege to stand his ground in the face of a violent challenger and meet violence with violence. A “duty to retreat” evolved in some jurisdictions, however, where a defender contemplates the use of‚ deadly force. See‚ WAYNE R. LAFAVE & AUSTIN W. SCOTT, CRIMINAL LAW 461 (2d ed. 1986). But with police, the courts have never imposed a duty to retreat.‚ See id. This, combined with the recurring police claim that an attacker might get close enough to grasp the officer’s sidearm, has meant, in practical terms, that an officer may repel even a minor physical threat with deadly force.

The effect of this exception for law enforcement officers has been to grant an almost absurd advantage to police in ‘self-defense’ incidents. Not only do cops have no duty to retreat, but they seem privileged to kill whenever a plausible threat of any injury manifests itself.‚ See infra, notes 115-147, and accompanying text. Cops ‚” unlike the general public ‚” appear excused whenever they open fire on an individual who threatens‚ any‚ harm ‚” even utterly nonlethal ‚” against them, such as a verbal threat to punch the officer combined with a step forward.‚ See infra, notes 123-147, and accompanying text.

108‚ See‚ James J. Fyfe,‚ Police Use of Deadly Force: Research and Reform, in‚ THE CRIMINAL JUSTICE SYSTEM: POLITICS AND POLICIES 134-40 (George F. Cole & Mare G. Gertz eds., 7th‚ ed. 1998).

109‚ Id. at 135 (quoting Chapman and Crocket).

110‚ See‚ People v. Klein, 137 N.E. 145, 149 (Ill. 1922) (reporting that “numerous” peace officers testified that shooting was the customary method of arresting speeders during trial of peace officer accused of murder).

111‚ See id.; Miller v. People, 74 N.E. 743 (Ill. 1905) (involving village marshal who shot and killed speeding carriage driver).

112‚ See‚ Fyfe,‚ supra‚ note 108, at 137.

113‚ See id. at‚ 140.

114‚ See id. at 141 (table showing fatal shootings per 1,000 police officers, Philadelphia). A study of Philadelphia P.D. firearm discharges from 1970 through 1978 found only two cases that resulted in departmental discipline against officers on duty.‚ See id. at 147 n.2. One case involved an officer firing unnecessary shots into the air; the other involved an officer who shot and killed his wife in a police station during an argument over his paycheck.‚ See id.

115‚ See Tennessee v. Garner, 471 U.S. 1 (1985).

116‚ 471 U.S. 1 (1985).

117‚ See‚ Fyfe,‚ supra‚ 108, at 136.

118‚ The Garner‚ decision has been interpreted in different ways by different courts and law-making bodies.‚ See‚ Michael R. Smith,‚ Police Use of Deadly Force: How Courts and Policy-Makers Have Misapplied Tennessee v. Garner, 1 KAN. J. L. & PUB. POL’Y, 100, 100-01 (1998). Smith argues that many of these interpretations stem from inaccurate readings of‚ Garner‚ and that lower courts have failed to hold police officers liable according to the standard required by the Supreme Court.‚ See id.

119‚ On behalf of modern police, courts have adopted a qualified immunity defense to police misconduct claims. Essentially, where cops can justify by plausible explanation that their conduct was within the bounds of their occupational duties, there is a “good faith” defense.‚ See‚ Harlow v. Fitzgerald, 457 U.S. 800 (1982); Procunier v. Navarette, 434 U.S. 555 (1978); Imbler v. Pachtman, 424 U.S. 409 (1976); Wood v. Strickland, 420 U.S. 308 (1975). But as David Rudovsky points out, the “good faith” defense is an artificial ingredient to normal tort liability. “The standard rule,” notes Rudovsky, “is that a violation of another’s rights or the failure to adhere to prescribed standards of conduct constitutes grounds for liability.” David Rudovsky,‚ The Criminal Justice System and the Role of the Police, in‚ THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE, 242, 248 (David Kairys ed., 1982). The “good faith” defense for police is thus an artificial layer of tort immunity protection not normally available to other types of litigants. Under the standard rules of tort law, after all, a defendant’s good faith, intent, or knowledge of the law are irrelevant.‚ See id. at 248.

120‚ See‚ Smith,‚ supra‚ note 118, at 117.

121‚ See id. at 106.

122‚ Idaho v. Horiuchi, 215 F.3d 986 (9th‚ Cir. 2000) (Kozinski, J., dissenting).

123‚ OCTOBER 22 COALITION TO STOP POLICE BRUTALITY ET AL., STOLEN LIVES: KILLED BY LAW ENFORCEMENT 307 (2d. ed. 1999) (hereinafter “STOLEN LIVES”) (saying officer shot and killed victim after victim ‘made a move’ following a foot chase).

124‚ See id. at 207 (listing a 1993 Michigan case).

125‚ See id. at 262 (reporting 1990 Brooklyn case in which cop had shot unarmed teenage suspect in back of head for allegedly reaching into jacket).

126‚ See id. at 250 (reporting 1996 New York case in which man was shot 24 times by police while sitting in car with his hands in the air);‚ id. at 252 (reporting shooting of alleged car thief after motion as if they were going for a gun’).

127‚ See id. at 262 (reporting 1990 Bronx shooting precipitated by the decedent turning toward an officer as officer opened door of decedent’s cab).

128‚ See id. at 263 (reporting 1988 New York case initiated when a driver made illegal turn and ending with police pumping 16 bullets into her).

129‚ See id. at 262 (reporting 1990 Brooklyn case in which decedent was shot nine times while standing and twice in back while lying on ground).

130‚ See id. at 240 (reporting a 1998 New York case).

131‚ See id. at 232 (reporting 1991 New Mexico case).

132‚ See id. at 220 (reporting 1998 Nevada case).

133‚ See id. at 29.

134‚ Id. at 44.

135‚ Id. at 46. The possession of a wooden stick has cost more than one person his life at the hands of police.‚ See also id. at 68.

136‚ Id. at 53.

137‚ Id. at 53.

138‚ See Detroit Police Kill Mentally Ill Deaf Man, BOSTON GLOBE, Aug. 31, 2000 at A8.

139‚ See‚ STOLEN LIVES,‚ supra‚ note 123, at 57.‚ 140‚ See id. at 60.

141‚ See id. at 62.

142‚ See id. at 206 (listing a 1993 Michigan case). In another Michigan case, a cop shot someone who merely had a VCR remote control in his pocket, claiming he mistook it for a gun.‚ See id. at 205.

143‚ See id. at 305 (saying Houston police surrounded truck and fired 59 times at victim as he sat in truck holding can opener). No civilian witnesses saw the “shiny object” (can opener) police claimed they saw.‚ See id.

144‚ Police use of throwdown guns has been alleged across the country. Guns which are introduced without a suspect’s fingerprints when they should have fingerprints, and guns that are found by police officers after an initial, supposedly complete, search of a crime scene by other detectives, can be said to raise questions about police use of throw-down guns.‚ C.f. Joe Cantlupe & David Hasemyer,‚ Pursuit of Justice: How San Diego Police Officers Handled the Killing of One of Their Own. It Is a Case Flawed by Erratic Testimony and Questionable Conduct, SAN DIEGO UNION-TRIBUNE, Sept. 11, 1994, at A1 (raising the issue in a San Diego case).

145‚ See‚ Webster v. City of Houston, 689 F.2d 1220, 1227 (5th Cir. 1982).

146‚ Id. at 1222.

147‚ See id. at 1221-23 (describing “damning” evidence of official cover-up and police vindication as a matter of policy).

148‚ See‚ STOLEN LIVES,‚ supra‚ note 123, at 72. In one 1987 Los Angeles case, a man was shot four times and killed when he picked up a discarded pushbroom to deflect police baton blows.‚ See id. 72.

149‚ See id. at iv. In one particularly egregious case, a police killing was upheld as beyond liability where officers shot a speeding trucker who refused to stop.‚ See‚ Cole v. Bone, 993 F.2d 1328 (8th‚ Cir. 1993).‚ But see, e.g., Gutierrez-Rodriquez v. Cartagena, 882 F.2d 553 (1st‚ Cir. 1989) (affirming verdict against plainclothes officers who shot driver who drove away); Sherrod v. Berry, 827 F.2d 195 (7th‚ Cir. 1987) (affirming verdict against officers who shot driver as driver reached into jacket pocket during questioning); Moody v. Ferguson, 732 F. Supp. 176 (D.S.L. 1989) (rendering judgment against officers who shot driver fleeing in vehicle from traffic stop).

150‚ See‚ Zuchel v. City and County of Denver, Colorado, 997 F.2d 730 (10th‚ Cir. 1993).

151‚ See‚ Alison L. Patton,‚ The Endless Cycle of Abuse: Why 42 U.S.C. ƒ¯‚¿‚½ 1983 Is Ineffective in Deterring Police Brutality, 44 HASTINGS L. J. 753, 754 (1993) (saying plaintiffs rarely win absent independent witnesses or physical evidence).

152‚ See‚ Peter L. Davis,‚ Rodney King and the Decriminalization of Police Brutality in America, 53 MD. L. REV. 271, 288 (1994). Prior to the 1900s, it was not uncommon for law enforcers who killed suspects during confrontations to be placed on trial for their lives even when they reacted to violent resisters.See‚ United States v. Rice, 27 F. Cas. 795 (C.C.N.C. 1875) (No. 16,153) (involving deputy United States Marshall on trial for murder of tax evasion suspect); State v. Brown, 5 Del. (5 Harr.) 505 (Ct. Gen. Sess. 1853) (fining peace officers for assault and false imprisonment); Conner v. Commonwealth, 3 Bin. 38 (Pa. 1810) (involving a constable indicted for refusing to execute arrest warrant). Even justices of the peace could be criminally indicted for dereliction of duties.‚ See‚ Respublica v. Montgomery, Dall. 419 (1795) (upholding validity of a criminal charge against a justice of the peace who failed to suppress a riot).

153‚ See‚ Davis,‚ supra‚ note 152, at 290 (noting the hopeless conflict of interest in handling police violence complaints).

154‚ For an overview of the powers of early grand juries to accuse government officials, see Roger Roots,‚ If It’s Not a Runaway, It’s Not a Real Grand Jury, 33 CREIGHTON L. REV. 821 (2000).

155‚ See‚ Steiker,‚ supra‚ note 3, at 836 (saying police excesses such as beatings, torture, false arrests and the third degree arc well documented).

156‚ See‚ STOLEN LIVES,‚ supra‚ note 123, at vii.

157‚ See‚ International Secretariat of Amnesty International, News Release,‚ From Alabama to Wyoming: 50 Counts of Double Standards ‚” The Missing Entries in the US Report on Human Rights, Feb. 25, 1999.

158‚ See‚ STOLEN LIVES,‚ supra‚ note 123, at iv.

159‚ See id. at v.

160‚ Certain examples demonstrate. FBI agents in Elizabeth, New Jersey shot 38 times inside an apartment to kill an unarmed man who they first tried to say had fired first.‚ See id. at 226. In February 1999, Bronx police fired 41 bullets at an unarmed African immigrant in his apartment doorway.‚ See id. at 234. After this unlawful killing, cops unlawfully searched the decedent’s apartment to justify shooting, failing to find any evidence of drugs.‚ See id. In August 1999, Manhattan cops fired a total of 35 shots at alleged robber (who probably did not fire), injuring bystander and sending crowds fleeing.‚ See id.

161‚ Most states that allow the death penalty require that aggravating factors exist before imposition of capital punishment.‚ See, e.g., IDAHO CODE ƒ¯‚¿‚½ 19-2515 (1997) (allowing death penalty for crimes involving “especially heinous, atrocious or cruel, [or] manifesting exceptional depravity” or showing “utter disregard for human life”); TEX. CRIM. P. ANN. ƒ¯‚¿‚½ 37.071 (West 1981) (listing factors such as whether the crime was “unreasonable in response to the provocation”); WYO. STAT. ANN. ƒ¯‚¿‚½ 6-2-102 (Michie 1999) (allowing death penalty only upon a finding of aggravating factors such as a creation of great risk of death to two or more persons or for “especially atrocious or cruel” conduct).

162‚ The earliest attempts at professionalization of constables failed in the United States due to insufficiency of public funds.‚ See‚ Steiker,‚ supra‚ note 3, at 831. Some of the earliest U.S. Supreme Court decisions regarding police forces involve disputes over municipal police spending.‚ See, e.g., Louisiana ex rel. Hubert v. New Orleans, 215 U.S. 170 (1909) (resolving dispute over debts run up by municipal police district); New Orleans v. Benjamin, 153 U.S. 411 (1894) (involving dispute over unbudgeted debts run up by New Orleans police board); District of Columbia v. Hutton, 143 U.S. 18 (1891) (dealing with salary dispute involving District of Columbia police force).

163‚ See‚ FRIEDMAN,‚ supra‚ note 58, at 362 (1993). Dallas police, for example, arrested 8,526 people in 1929 “on suspicion” but charged less than five percent of them with a crime.‚ See id.

164‚ The infamous case of‚ Brown v. Mississippi, 297 U.S. 278 (1936), provides a grim reminder of the torture techniques that have been employed upon suspects during the past century. In‚ Brown, officers placed nooses around the necks of suspects, temporarily hanged them, and cut their backs to pieces with a leather strap to gain confessions.‚ Id. at 281-82.

165‚ FRIEDMAN,‚ supra‚ note 58, at 151 n.20 (quoting George S. McWatters, who studied New York detectives in the 1870s).

166‚ See‚ TITUS REID, supra note 57, at 122 (citations omitted).

167‚ See‚ Peter B. Kraska & Victor E. Kappeler,‚ Militarizing American Police: The Rise and Normalization of Paramilitary Units, 44 SOC. PROBS. 1, 11 (1997).

168‚ One-hundred-seventeen federal, state, and local officers were killed feloniously in 1996 ‚” the lowest number since 1960.‚ See‚ Sue TITUS REID,‚ supra‚ note 57, at 123.

169‚ See‚ National Institute for Occupational Safety and Health,‚ Violence in the Work Place, June 1997.

170‚ See id.

171‚ Approximately 40 percent of police deaths are due to accidents.‚ See‚ TITUS REID,‚ supra‚ note 57, at 123.

172‚ See‚ National Institute for Occupational Safety and Health,‚ Fatal Injuries to Workers in the United States, 1980-1989: A Decade of Surveillance‚ 14 (April 15, 1999); Robert Rockwell,‚ Police Brutality: More than Just a Few Bad Apples, REFUSE & RESIST, Aug. 14, 1997 (describing the “cultivation of the myth of policing as the most dangerous occupation”).

173‚ See id. at 13.

174‚ See‚ SKOLNICK & FYFE,‚ supra‚ note 63, at 93.

175‚ See‚ Hall,‚ supra‚ note 71, at 582-83 (describing early constables as “[a]bominably paid”).

176‚ C.f. STOLEN LIVES,‚ supra‚ note 123, at v (saying when police arrive on the scene, they often escalate the situation rather than defuse it).

177‚ See‚ STOLEN LIVES,‚ supra‚ note 123, at vi.

178‚ See, e.g., Brandon v. City of Providence, 708 A.2d 893 (R.I. 1998) (finding municipality immune from liability when cops prevented relatives of injured shooting victim from taking victim to the hospital before victim died).‚ See also‚ Stolen Lives,‚ supra‚ note 157, at 305 (saying Tennessee police prevented fire fighters from saving victim of fire in 1997 case). Other notorious examples can be cited, including the 1993 Waco fire (in which fire trucks were held back by federal agents) and the 1985 MOVE debacle in Philadelphia in which police dropped a bomb on a building occupied by women and children and then held back fire fighters from rescuing bum victims.‚ See‚ WILLIE L. WILLIAMS, TAKING BACK OUR STREETS: FIGHTING CRIME IN AMERICA 16 (1996) (saying investigative hearings revealed cops had held back rescuers as a ‘tactical decision’).

179‚ See‚ SKOLNICK & FYFE,‚ supra‚ note 63, at 75 (citing U.S. Civil Disorder Commission study).

180‚ See‚ SKOLNICK & FYFE,‚ supra‚ note 63, at 83 (describing police riots at Columbia University and Los Angeles).

181‚ See‚ RIGHTS IN CONFLICT: THE OFFICIAL REPORT TO THE NATIONAL COMMISSION ON THE CAUSES AND PREVENTION OF VIOLENCE xxiii, xxvi (1968).

182‚ See‚ John D. Bessler,‚ The Public Interest and the Unconstitutionality of Private Prosecutors, 47 ARK. L. REV. 511 (1994) (attacking private prosecution as unfair, arbitrary, and not in the public interest).

183‚ See‚ Hall,‚ supra‚ note 71, at 580-85 (detailing inadequacies of private law enforcement).

184‚ See‚ United States v. Wong, 431 U.S. 174 (1977) (holding Miranda requirements do not apply to a witness testifying before a grand jury); United States v. Calandra, 414 U.S. 338 (1974) (holding grand jury witness may not refuse to answer questions on ground that they are based on evidence obtained from unlawful search); United States v. Dionisio, 410 U.S. 1 (1973) (holding seizure of a person by subpoena for grand jury appearance is generally not within Fourth Amendment’s protection).

185‚ See‚ Richard M. Brown,‚ Historical Patterns of Violence in America, in‚ NATIONAL COMMISSION ON THE CAUSES AND PREVENTION OF VIOLENCE, VIOLENCE IN AMERICA: HISTORICAL AND COMPARATIVE PERSPECTIVES 57 (Graham & Gurr, ed. 1969).

186‚ See‚ State v. Walker, 32 Me. 195 (1850) (upholding actions of the private group).

187‚ See United States v. Whittier, 28 F. Cas. 591 (C.C.E.D. Mo. 1878).

188‚ See supra‚ notes 438-445 and accompanying text for a discussion of the evolution of entrapment as a law enforcement practice.

189‚ See‚ Richard Maxwell Brown,‚ The American Vigilante Tradition, in‚ NATIONAL COMMISSION ON THE CAUSES AND PREVENTION OF VIOLENCE, VIOLENCE IN AMERICA: HISTORICAL AND COMPARATIVE PERSPECTIVES 57 (Graham & Gurr, dir. 1969).

190‚ See‚ JAMES S. CAMPBELL, ET AL., LAW AND ORDER RECONSIDERED: REPORT OF THE TASK FORCE ON LAW AND LAW ENFORCEMENT 441 (1970) (discussing successes of citizen auxiliary units in Queens, New York and other areas).

191‚ See id. 437-54 (1970) (discussing successes of citizen involvement in law enforcement).

192‚ American frontier vigilantism generally targeted serious criminals such as murderers, coach robbers and rapists as well as horse thieves, counterfeiters, outlaws, and ‘bad men.’‚ See‚ NATIONAL COMMISSION ON THE CAUSES AND PREVENTION OF VIOLENCE, VIOLENCE IN AMERICA: HISTORICAL AND COMPARATIVE PERSPECTIVES 97 (Graham & Gurr, dir. 1969). Arguably, such offenders qualified as felons and would have faced the death penalty under the common law even if more conventional court processes were followed. That such vigilante movements often followed rudimentary due process of law is attested by historians such as Richard Maxwell Brown, who recounts that “vigilantes’ attention to the spirit of law and order caused them to provide, by their lights, a fair but speedy trial.” Richard Maxwell Brown,‚ supra‚ note 189, at 164. The northern Illinois Regulator movement of 1841, for example, provided accused horse thieves and murderers with a lawyer, an opportunity to challenge jurors, and an arraignment.‚ See id. at 163. At least one accused murderer was‚ acquitted‚ by a vigilante court on the Wyoming frontier.‚ See‚ Joe B. Frantz,‚ The Frontier Tradition: An Invitation to Violence, in‚ NATIONAL COMMISSION ON THE CAUSES AND PREVENTION OF VIOLENCE, VIOLENCE IN AMERICA: HISTORICAL AND COMPARATIVE PERSPECTIVES 129-30 (Graham & Gurr, dir. 1969). Many accused were let off with whipping and expulsion rather than execution in the early decades of vigilante justice.‚ See‚ Brown,‚ supra‚ note 189, at 164. Less than half of all vigilante groups ever killed anyone.‚ See id. Ironically, the move by vigilante groups toward killing convicted suspects began in the 1850s, ‚” corresponding closely with the meteoric rise of professional policing.‚ See id.

Vigilante movements occasionally developed to‚ rescue‚ the law from corrupt public officials who were violating the law. The case of the vigilantes who arrested and hanged Sheriff Henry Plummer of Virginia City, Montana in 1864 is such an example.‚ See‚ LEW L. CALLAWAY, MONTANA’S RIGHTEOUS HANGMEN (1997) (arguing the vigilantes had no choice but to take the law into their own hands).

193‚ “[T]he Western frontier developed too swiftly for the courts of justice to keep up with the progression of the people.” Joe B. Frantz,‚ supra‚ note 192, at 128. Vigilante movements did little more than play catch-up to what can only be described as rampant frontier lawlessness. Five-thousand wanted men roamed Texas in 1877.‚ See id. at 128. Major crimes often went totally unprosecuted and countless offenders whose crimes were well known lived openly without fear of arrest on the western frontier.‚ See id. Vigilantes filled in only the most gaping holes in court jurisdiction, generally (but not always) intervening to arrest only the perpetrators of serious crimes.‚ See id. and at 130 (saying “improvised group action” was the only resort for many on the far frontier).

194‚ David H. Bayley & Clifford D. Shearing,‚ The Future of Policing, in‚ THE CRIMINAL JUSTICE SYSTEM: POLITICS AND POLICIES 150, 150 (George F. Cole & Marc G. Gertz, eds., 7th‚ ed. 1998).

195‚ See id. at 151, 154.

196‚ Tucker Carlson,‚ Washington’s Inept Police Force,‚ WALL ST. J., Nov. 3, 1993, at A19.

197‚ See‚ SILBERMAN,‚ supra‚ note 6, at 297. Silberman points out that New York City police solved only two percent of robbery cases in which a witness could not identify an offender or the offender was not captured at the scene.‚ See id.

198‚ See id. at 296 (saying clearance rate dropped precipitously between 1960 and 1976 as proportion of crimes committed by strangers increased).

199‚ See id. (citing figures registered between 1960 and 1976).

200‚ See id. at 296.

201‚ See‚ Laura Parker & Gary Fields,‚ Unsolved Killings on Rise: Percent of Cases Closed Drops From 86% to 69%, USA TODAY, Feb. 22, 2000, at A1.

202‚ See id.

203‚ See‚ BARRY SCHECK, ET AL., ACTUAL INNOCENCE 175 (2000).

204‚ 428 U.S. 153 (1976) (finding death penalty constitutional so long as adequate procedures are provided to a defendant).

205‚ See‚ SCHECK,‚ supra‚ note 203, at 218.

206‚ See Illinois Governor Orders Execution Moratorium,‚ USA TODAY, Feb. 1, 2000, at 3A.

207‚ See id.

208‚ See‚ SCHECK,‚ supra‚ note 203, at 218 (noting an average of 4.6 condemned people per year have been set free after 1996, while only 2.5 death row inmates per year were freed between 1973 and 1993).

209‚ See id. at xv (noting these 5,000 exonerations came from only the first 18 thousand results of DNA testing at crime laboratories ‚” a rate of almost 30% exonerated).

210‚ C.f. id. at 180 (detailing indictment of four officers for perjury and obstruction of justice in the wake of one DNA exoneration).

211‚ DNA testing has proven that at least 67 people were sent to prison or death row for crimes they did not commit.‚ See id. at xiv. This number grows each month.‚ See id.

212‚ C.f. Morgan Cloud,‚ The Dirty Little Secret, 43 EMORY L. J. 1311, 1311 (1994) (saying “[p]olice perjury is the dirty little secret of our criminal justice system”).

213‚ See‚ BURTON S. KATZ, JUSTICE OVERRULED: UNMASKING THE CRIMINAL JUSTICE SYSTEM 77-86 (1999).

214‚ See‚ SILBERMAN,‚ supra‚ note 6, at 308 (describing interrogation techniques of police as “an art form in its own right.”). Lying or bluffing can often persuade a suspect to admit crimes to the police which would not otherwise be proven.‚ See id.

215‚ C.f. id. (recounting that an officer under observation would simply lie on the stand if challenged in court about whether Miranda warnings were given before questioning a suspect).

216‚ See‚ Joe Cantlupe & David Hasemyer,‚ Pursuit of Justice: How San Diego Police Officers Handled the Killing of One of Their Own. It Is a Case Flawed by Erratic Testimony and Questionable Conduct, SAN DIEGO UNION-TRIBUNE, Sept. 11, 1994, at A1 (exposing that some officers gave false testimony in case of suspected cop-killers).

217‚ Andrew Horwitz,‚ Taking the Cop Out of Copping a Plea: Eradicating Police Prosecution of Criminal Cases, 40 ARIZ. L. REV. 1305, 1321 (1998) (quoting Jerome H. Skolnick).

218‚ See‚ Daniel B. Wood,‚ One precinct stirs a criminal-justice crisis, CHRISTIAN SCIENCE MONITOR, Feb. 18, 2000, at 1.

219‚ See‚ TITUS REID,‚ supra‚ note 57, at 120.

220‚ See‚ SILBERMAN,‚ supra‚ note 6, at 231.

221‚ See‚ Gary Fields,‚ New Orleans’ Crime Fight Started With Police, USA TODAY, Feb. 1, 2000, at 6A.

222‚ See‚ Tucker Carlson,‚ Washington’s Inept Police Force, WALL ST. J., Nov. 3, 1993, at A19.

223‚ See Abuse of Power, DETROIT NEWS, May 3, 1996.

224‚ See‚ Lawrence W. Sherman,‚ Becoming Bent: Moral Careers of Corrupt Policemen, IN‚ “ORDER UNDER LAW”: READINGS IN CRIMINAL JUSTICE 96, 104-06 (1981) (discussing police burglary scandals of the 1960s).

225‚ See‚ Wood,‚ supra‚ note 218, at 5 (citing critics).

226‚ See‚ FRIEDMAN,‚ supra‚ note 58, at 154. The Lexow Committee of 1894 was perhaps the first to probe police misconduct in New York City. The Committee found that the police had formed a “separate and highly privileged class, armed with the authority and the machinery of oppression.”‚ See id.. Witnesses before the Committee testified to brutal beatings, extortion and perjury by New York police.‚ See id. at 154-55.

227‚ In April 1994, for example, thirty-three New York officers were indicted and ultimately convicted of perjury, drug dealing and robbery.‚ See‚ James Lardner,‚ Better Cops. Fewer Robbers, N.Y. TIMES MAG., Feb. 9, 1997, pp. 44-52. The following year, sixteen Bronx police officers were indicted for robbing drug dealers, beating people, and abusing the public.‚ See id.

228‚ See‚ Jerome H. Skolnick,‚ A Sketch of the Policeman’s “Working Personality,” in‚ THE CRIMINAL JUSTICE SYSTEM: POLITICS AND POLICIES 116, 123 (George F. Cole & Marc G. Gertz 7th‚ ed. 1998).

229‚ See‚ Wood,‚ supra‚ note 218, at 5 (quoting critics).

230‚ C.f. TITUS REID,‚ supra‚ note 57, at 117-119 (describing police subculture).

231‚ See‚ FRIEDMAN,‚ supra‚ note 58, at 154 (saying New York police of the 1890s engaged in routine extortion of businesses, collecting kickbacks from push-cart vendors, corner groceries, and businessmen whose flag poles extended too far into the street). In Chicago, police historically sought “contributions” from saloonkeepers.‚ See id.‚ at 155.

232‚ See, e.g., PATRICK J. BUCHANAN, RIGHT FROM THE BEGINNING 283-84 (1990) (detailing police favoritism toward one St. Louis newspaper and antagonism toward its competitor); Jonathan D. Rockoff,‚ Comment Costs Kennedy Police Backing, PROVIDENCE J., April 21, 2000, at 1B (describing police unions’ threats to drop their support for Rep. Kennedy due to Kennedy’s public remarks).

233‚ See‚ Davis,‚ supra‚ note 152, at 355.

234‚ See‚ Wasserstrom,‚ supra‚ note 70, at 293-94 n.188 (1984) (stating no one has ever been convicted under the statute, 18 U.S.C. ƒ¯‚¿‚½ 2236).

235‚ See‚ U.S. Dep’t of Justice, Office of Inspector General,‚ The FBI Laboratory: An Investigation into Laboratory Practices and Alleged Misconduct in Explosives-Related and Other Cases‚ (April 1997) (detailing Justice Department’s findings of impropriety at the FBI Crime Lab).

236‚ Cf. SlLBERMAN,‚ supra‚ note 6, at 211-14 (observing the behavior of cops on patrol).

237‚ See id. at 215-16 (citing study conducted in Kansas City in the 1970s).

238‚ C.f. id. at 215 (pointing to mounting criticism of traditional approach). Studies of police pull-overs and sidewalk stops invariably demonstrate patterns of economic, racial, and social discrimination as well.‚ See, e.g., Bruce Landis,‚ State Police Records Support Charges of Bias in Traffic Stops, PROVIDENCE J., Sept. 5, 1999 at 1A (reporting Rhode Island traffic stop statistics demonstrate racial bias by state police).

239‚ The United States’ ‘war on drugs’ is a perfect illustration of the difficulties of implementing broad-ranging social policy through police enforcement mechanisms. “Not since Vietnam ha[s] a national mission failed so miserably.” JIM MCGEE & BRIAN DUFFY, MAIN JUSTICE: THE MEN AND WOMEN WHO ENFORCE THE NATION’S CRIMINAL LAWS AND GUARD ITS LIBERTIES 43 (1996). The federal drug control budget increased from $4.3 billion in 1988 to $11.9 billion in 1992, yet national drug supply increased greatly and prices dropped during the same period.‚ See id. at 42. The costs of enforcement in 1994 ranged from $79,376 per arrestee by the DEA to $260,000 per arrestee by the FBI, with no progress made at all toward decreasing the drug trade.‚ See id.

240‚ See‚ JOHN R. LOTT, JR., MORE GUNS, LESS CRIME: UNDERSTANDING CRIME AND GUN CONTROL LAWS 213 n.3 (1998) (citing forthcoming paper).

241‚ Some two-thirds of the public say they have a great deal of respect for the police. See SHMUEL LOCK, CRIME, PUBLIC OPINION, AND CIVIL LIBERTIES: THE TOLERANT PUBLIC 69 (1999). Interestingly, however, lawyers are more than 20 percentage points lower in their general assessment of police.‚ See id.

242‚ Public opinion polls repeatedly show that a majority of the public favor decreasing constitutional protections.‚ See, e.g., id. at 6. It must be noted, however, that the general public is‚ more‚ inclined than lawyers and the Supreme Court to favor protecting some civil liberties. For example, 49 percent of the public disapproves of police searching private property by air without warrant, while only 37 percent of lawyers disapprove and the Supreme Court upheld the practice in‚ United States v. Dunn, 480 U.S. 294 (1987).‚ See id. at 39. A majority of the public (51%) would prohibit police from searching one’s garbage without a warrant, while only 36 percent of lawyers disapprove and the Supreme Court upheld the practice in‚ California v. Greenwood, 486 U.S. 35 (1988).‚ See id. The public is also less inclined than lawyers to approve of using illegally obtained evidence to impeach a witness.‚ See id. at 45.

243‚ C.f. Illinois v. Krull, 480 U.S. 340, 365 (1987) (O’Connor, J., dissenting) (stating Fourth Amendment rights have at times proved unpopular and the Framers drafted the Fourth Amendment in fear that future majorities might compromise Fourth Amendment values).

244‚ See‚ JOHN PHILLIP REID, IN DEFIANCE OF THE LAW: THE STANDING-ARMY CONTROVERSY, THE Two CONSTITUTIONS, AND THE COMING OF THE AMERICAN REVOLUTION (1981) (recounting the history and constitutional background of the standing-army controversy that preceded the Revolution).

245‚ THE DECLARATION OF INDEPENDENCE paras. 12, 13, 14 (U.S. 1776).

246‚ See‚ JOHN P. REID,‚ supra‚ note 244, at 79.

247‚ See id. at 79.

248‚ See id. at 50 (citation omitted).

249‚ See id. at 29 (quoting the orations of Hancock).

250‚ In Edinburgh in 1736, a unit of town guards maintaining order during the execution of a convicted smuggler was pelted with stones and mud until some soldiers began firing weapons at the populace.‚ See‚ JOHN P. REID,‚ supra‚ note 244, at 114-15 (recounting the history and constitutional background of the standing-army controversy which preceded the Revolution). After nine citizens were found dead, the captain of the guard was tried for murder, convicted, and himself condemned to be hanged.‚ See id.

When officers of the crown indicated a willingness to pardon the captain, a mob of civilians “rescued” the captain from prison and hanged him.‚ See id.

251‚ See‚ Hall,‚ supra‚ note 71, at 587-88.

252‚ Id. at 587.

253‚ Ben C. Roberts,‚ On the Origins and Resolution of English Working-Class Protest, in‚ NATIONAL COMMISSION ON THE CAUSES AND PREVENTION OF VIOLENCE, VIOLENCE IN AMERICA: HISTORICAL AND COMPARATIVE PERSPECTIVES 238, 252 (Graham & Gurr, dir. 1969).

254‚ JOHN P. REID,‚ supra‚ note 244, at 80.

255‚ See id. at 95 (quoting from a 1770 issue of the New Hampshire Gazette).

256‚ See‚ Kraska & Kappeler,‚ supra‚ note 167, at 2-3 (citing National Institute of Justice report detailing “partnership” between Defense and Justice Departments in equipping personnel to “engage the crime war”).

257‚ See‚ William Booth,‚ The Militarization of ‘Mayberry,’‚ WASH. POST, June 17, 1997, at A1.

258‚ See id.

259‚ See id.

260‚ See id. (quoting Kraska).

261‚ See‚ Kraska & Kappeler,‚ supra‚ note 167, at 10.

262‚ See‚ Roger Roots,‚ The Approaching Death of the Collective Right Theory of the Second Amendment, 39 DUQUESNE L. REV. 71 (2000).

263‚ See id.

264‚ C.f. id.

265‚ See‚ JOHN R. LOTT, JR., MORE GUNS, LESS CRIME: UNDERSTANDING CRIME AND GUN CONTROL LAWS (1998) (supporting a proposition consistent with the title); GARY KLECK, POINT BLANK: GUNS AND VIOLENCE IN AMERICA (1991).

266‚ KLECK,‚ supra‚ note 265, at 111-116, 148.

267‚ See‚ George F. Will,‚ Are We a Nation of Cowards?, NEWSWEEK, Nov. 15, 1993, at 93. The error rate is defined as the rate of shootings involving an innocent person mistakenly identified as a criminal. See id.

268‚ See‚ ANTHONY J. PINIZZOTTO, ET AL., U.S. DEP’T OF JUSTICE, NAT’L INST. OF JUSTICE, IN THE LINE OF FIRE: A STUDY OF SELECTED FELONIOUS ASSAULTS ON LAW ENFORCEMENT OFFICERS 8 (1997) (table showing 41 percent accuracy by police as opposed to 91 percent accuracy by their assailants with handguns).

269‚ See, e.g., Morgan v. California, 743 F.2d 728 (9th‚ Cir. 1984) (involving drunk officers who backed their car into innocent civilian couple and then brandished guns to threaten them).

270‚ See‚ Shapiro v. New York City Police Dept., 595 N.Y.S.2d 864 (N.Y. Sup. Ct. 1993) (upholding revocation of pistol license of cop who threatened drivers with gun during two traffic disputes); Matter of Beninson v. Police Dept., 574 N.Y.S.2d 307 (N.Y. Sup. Ct. 1991) (involving revocation of pistol permit of cop based on two displays of firearms in traffic situations).

271‚ See‚ JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW 255 n. 34 (2d ed. 1995) (citing review of nearly 700 shootings).

272‚ See‚ Tucker Carlson,‚ Washington’s Inept Police Force, WALL ST. J., Nov. 3, 1993, at A19.

273‚ U.S. CONST. amend. III (“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law”).

274‚ See‚ Morton J. Horwitz,‚ Is the Third Amendment Obsolete?, 26 VALPARAISO U. L. REV. 209, 214 (1991) (stating the Third Amendment might have produced a constitutional bar to standing armies in peacetime if public antipathy toward standing armies had remained intense over time).

275‚ See id.

276‚ 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 747-48 (1833) (emphasis added).

277‚ For a well-written local history of this conflict, see HENRY BLACKMAN PLUMB, HISTORY OF HANOVER TOWNSHIP 121-140 (1885).

278‚ See id.

279‚ See id. at 125-26.

280‚ See id. at 130.

281‚ See id. at 138 (adding that those convicted “were allowed easily to escape, and no fines were ever attempted to be collected”).

282‚ See, e.g., JAMES BOVARD, FREEDOM IN CHAINS: THE RISE OF THE STATE AND THE DEMISE OF THE CITIZEN (1999) (presenting a thesis in line with the title); JAMES BOVARD, LOST RIGHTS: THE DESTRUCTION OF AMERICAN LIBERTY (1994) (detailing America’s loss of freedom).

283‚ See‚ Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting) (saying the right to be let alone is “the most comprehensive of rights and the right most valued by civilized man.”).

284‚ C.f. Stephen D. Mastrofski, et al.,‚ The Helping Hand of the Law: Police Control of Citizens on Request, 38 CRIMINOLOGY 307 (2000) (detailing study finding officers are likely to use their power to control citizens at mere request of other citizens).

285‚ U.S. CONST. amend. IV.

286‚ See, e.g., Maryland Minority,‚ Address to the People of Maryland, Maryland Gazette, May 6, 1788,‚ reprinted in‚ THE ORIGIN OF THE SECOND AMENDMENT,‚ supra‚ note 89, at 356, 358 (stating that an amendment protecting people from unreasonable search and seizure was considered indispensable by many who opposed the Constitution).

287‚ See, e.g., AKHIL R. AMAR, THE CONSTITUTION AND CRIMINAL PROCEDURE: FIRST PRINCIPLES 1-45 (1997). Amar argues that the Amendment lays down only a few “first principles” ‚” namely “that all searches and seizures must be reasonable, that warrants (and only warrants) always require probable cause, and that the officialdom should be held liable for unreasonable searches and seizures.”‚ Id. at 1.

288‚ See, e.g., Richard A. Posner,‚ Rethinking the Fourth Amendment, 1981 SUP. CT. REV. 49 (arguing that the Fourth Amendment should not provide a guilty criminal with any right to avoid punishment).

289‚ See‚ AMAR,‚ supra‚ note 287, at 3-17 (arguing the Framers intended no warrant requirement).

290‚ See id.

291‚ See‚ California v. Acevedo, 500 U.S. 565, 581 (1991) (Scalia, J., concurring) (referencing Amar’s claims for support). Ten years earlier, in‚ Robbins v. California, 453 U.S. 420 (1981), Justice Rehnquist cited a 1969 book by Professor Telfred Taylor ‚” Amar’s predecessor in the argument that the Fourth Amendment’s text requires only an ad hoc test of reasonableness ‚” for the same proposition.‚ Id. at 437 (Rehnquist, J., dissenting).

292‚ See, e.g., Hulit v. State, 982 S.W.2d 431, 436 (Tex. Crim. App. 1998) (citing Amar for proposition that Fourth Amendment requires no warrants).

293‚ See, e.g., Max Boot, Out of Order: Arrogance, Corruption, and Incompetence on the Bench 66 (1998) (reciting the Amar/Taylor thesis without reservation).

294‚ Since the addition of Justice Rehnquist to the Supreme Court, the Court has traveled far down the road toward ejecting the warrant requirement.‚ See generally‚ Wasserstrom,‚ supra‚ note 70. The Court has increasingly tended to adopt a mere balancing test, pitting the citizen’s “Fourth Amendment interests” (rather than his “rights”) against “legitimate governmental interests.”‚ See, e.g., Delaware v. Prouse, 440 U.S. 648, 654 (1979).

295‚ In United States v. Chadwick, 433 U.S. 1, 6 (1977), the United States Justice Department mounted a “frontal attack” on the warrant requirement and argued that the warrant clause of the Fourth Amendment protected only “interests traditionally identified with the home.” Accordingly, the Justice Department would have eliminated warrants in every other setting.

296‚ Compare‚ Howard v. Lyon, 1 Root 107 (Conn. 1787) (involving constable who obtained “escape warrant” to recapture an escaped prisoner and even had the warrant “renewed” in Rhode Island where prisoner fled),‚ and‚ Bromley v. Hutchins, 8 Vt. 68 (1836) (upholding damages against a deputy sheriff who arrested an escapee without warrant outside the deputy’s jurisdiction),‚ with‚ United States v. Watson, 423 U.S. 411 (1976) (allowing warrantless arrest of most suspects in public so long as probable cause exists).

297‚ See‚ Morgan Cloud,‚ Searching through History; Searching for History, 63 U. CHI. L. REV. 1707, 1713 (1996) (citing the exhaustive research of William Cuddihy for the proposition that specific warrants were required at Founding).

298‚ AMAR,‚ supra‚ note 287, at 5.

299‚ 1 Conn. 40 (1814).

300‚ See id. at 44.

301‚ 3 Day 1, 3 (Conn. 1807).

302‚ 1761-1772 Quincy Mass. Reports (1763). Perhaps Amar’s statement can be read as a commentary on the dearth of originalist scholarship among those who support strong protections for criminal suspects and defendants. “Originalism” as a means of constitutional interpretation is not always definable in a single way, and “originalists” may often contradict each other as to their interpretation of given cases.‚ See‚ Richard S. Kay,‚ “Originalist” Values and Constitutional Interpretation, 19 HARV. J.L. & PUB. POL’Y 335 (1995). Professor Kay has identified four distinct interpretive methods as being “originalist” ‚” any two of which might produce differing conclusions: 1) original text, 2) original intentions, 3) original understanding, and 4) original values.‚ See id. at 336. This being conceded, originalism has generally been the domain of “conservative” jurists for the past generation, fueled by reactions to the methods of adjudication employed by the Warren Court.‚ See id. at 335.

303‚ 9 N.H. 239 (1838).

304‚ 3 Bin. 38, 43 (Pa. 1810).

305‚ Admittedly, two of Amar’s cited cases present troubling statements of the law. The rule of Amar’s first case,‚ Jones v. Root, 72 Mass. 435 (1856), is somewhat difficult to discern. Although the case may be read as a total rejection of required warrants (as Amar contends,‚ supra note 287, at 4-5 n.10), it may also be read as an adoption of the “in the presence” exception to the warrant requirement known to the common law. The court’s opinion is no more than a paragraph long and merely upholds the instruction of a lower court that a statute allowing warrantless seizure of liquors was constitutional.‚ Jones, 72 Mass. at 439. The opinion also upheld the use of an illustration by the trial judge that suggested the seizure was similar to a seizure of stolen goods observed in the presence‚ of an officer.‚ See id. at 437.

A second case may also be read to mean that the government may search and seize without warrant, but might also be read as enunciating the “breach of peace” exception to the warrant requirement.‚ Mayo v. Wilson, 1 N.H. 53 (1817) involved a town tythingman who seized a wagon and horses of an apparent teamster engaged in commercial delivery on the Sabbath, in violation of a New Hampshire statute. Amar quotes‚ Mayo’s‚ pronouncement that the New Hampshire Fourth-Amendment equivalent “does not seem intended to restrain the legislature …” But elsewhere in the opinion, the New Hampshire Supreme Court stated that an arrest‚ required‚ a “warrant in law” ‚” either a magistrate’s warrant, or excusal by the commission of a felony or breach of peace.‚ Mayo, 1 N.H. at 56. “[B]ut if the affray be over, there must be an express warrant.” Id. (emphasis added). Not much support for Amar’s thesis there.

Mayo‚ was decided only fourteen years after the dawn of judicial review in‚ Marbury v. Madison, 5‚ U.S. 137 (1803), during an era when the constitutional interpretations of legislatures were thought to have equal weight to the interpretations of the judiciary.‚ Cf. HENRY J. ABRAHAM, THE JUDICIAL PROCESS 335-40 (7th‚ ed. 1998) (describing the slow advent of the concept of judicial review). Indeed, the first act of a state legislature to be declared unconstitutional came only seven years earlier,‚ see‚ Fletcher v. Peck, 10 U.S. 87 (1810), and the first state court decision invalidated by the Supreme Court had come only one year earlier.‚ See‚ Martin v. Hunter’s Lessee, 14 U.S. 304 (1816). The very heart of the Mayo‚ decision that Amar relies on (the proposition that state legislatures have concurrent power of constitutional review with the judiciary) was so thoroughly discredited soon afterward that Amar’s extrapolation that Founding era courts did not require warrants seems exceedingly far-fetched.

As judicial review gathered sanction, the doctrine apparently enunciated in‚ Mayo‚ became increasingly discredited.‚ See‚ Ex Parte Rhodes, 79 So. 462 (Ala. 1918) (saying “[t]here is not to be found a single authority, decision, or textbook, in the library of this court, that sanctions the doctrine that the legislature, a municipality, or Congress can determine what is a ‘reasonable’ arrest”).

306‚ Amar cites six cases (all referred to in‚ United States v. Watson, 423 U.S. 411 (1976)), as standing for the proposition that state Fourth Amendment equivalents did not presume a warrant requirement. AMAR,‚ supra‚ note 287, at 5 n. l1. The first case,‚ State v. Brown, 5 Del. (5 Harr.) 505 (Ct. Gen. Sess. 1853), is difficult to reconcile with Amar’s thesis that antebellum courts recognized no warrant requirement.‚ Brown‚ upheld a criminal‚ verdict against a night watchman who entered a residence in pursuit of a fleeing chicken thief and instead falsely arrested ‚” without warrant ‚” the proprietor. The second case cited by Amar,‚ Johnson v. State, 30 Ga. 426 (1860), simply upheld a guilty verdict against a man who shot a policeman during a warrantless arrest for being an accomplice to a felony. The Georgia Supreme Court repeated the common law exception allowing that an officer may arrest felons without warrant. The third case,‚ Baltimore & O. R.R. Co. v. Cain, 81 Md. 87, 31 A. 801 (1895), merely reversed a civil jury verdict for an arrestee on grounds that the appellant railroad company was entitled to a jury instruction allowing for a breach-of-peace exception to the warrant requirement. The fourth case,‚ Reuck v. McGregor, 32 N.J.L. 70 (Sup. Ct. 1866), reversed a civil verdict on grounds of excessive damages ‚” while upholding civil liability‚ for causing warrantless arrest of an apparently wrongly-accused thief.‚ Holley v. Mix, 3 Wend. 350 (N.Y. Sup. Ct. 1829), Amar’s fifth case, offers little support for Amar’s thesis.‚ Holleyupheld a civil judgment against a private person and an officer who arrested a suspect pursuant to an invalid warrant. Finally,‚ Wade v. Chaffee, 8 R.I. 224 (1865), simply held that a constable was not bound to procure a warrant where he had probable cause to believe an arrestee was guilty of a felony, even though no fear of escape was present.

307‚ Amar cites four cases as standing for the proposition that state courts interpreted their state constitutional predecessors of the Fourth Amendment’s text as requiring no warrants for searches or seizures. AMAR, supra note 287, at 5 n.10.‚ Jones v. Root, 72 Mass. (6 Gray) 435 (1856), upheld a Massachusetts “no-warrant” statute in a one-paragraph opinion explained supra‚ note 306. In‚ Rohan v. Sawin, 59 Mass. (5 Cush.) 281 (1850), Massachusetts’ highest court found that a warrantless arrest qualified under the “felon” exception to the warrant requirement.‚ Mayo v. Wilson, 1 N.H. 53 (1817), is described supranote 306.

Finally, the 1814 Pennsylvania case of‚ Wakely v. Hart, 6‚ Binn. 316 (Pa. 1814), resolved a civil suit brought by an accused thief (Wakely) against his arresters upon grounds that the arrest had been warrantless and Wakely had been guilty only of a misdemeanor. The Pennsylvania Supreme Court upheld a jury’s verdict for the arresters, upon the rather-fudged finding that Wakely had fled from the charges against him and had been guilty of at least “an offence which approaches very near to a felony,” if not an actual felony.‚ Wakely, 6 Binn. at 319-20.

308‚ See‚ Eric Schnapper,‚ Unreasonable Searches and Seizures of Papers, 71 VA. L. REV. 869, 874 (1985) (saying the search and seizure clause of the Fourth Amendment “embodies requirements independent of the warrant clause” but which were more strict at Founding than warrant requirement).

309‚ See‚ Wilkes v. Wood, 19 Howell’s State Trials 1153, 1167 (c.p. 1763) (stating “a jury have it in their power to give damages for more than the injury received”).

310‚ See‚ Schnapper,‚ supra‚ note 308, at 917 (referring to‚ Boyd v. United States, 116 U.S. 616 (1886)).‚ Boyd’s‚ proposition was slowly watered down and distinguished until the case of‚ Andresen v. Maryland‚ finished it off. Andresen v. Maryland, 427 U.S. 463 (1976) (holding that business documents evidencing fraudulent real estate dealings could be constitutionally seized by warrant).

311‚ See‚ Gouled v. United States, 255 U.S. 298 (1921) (pronouncing “mere evidence” rule, which stood for more than 45 years).

312‚ See‚ Schnapper,‚ supra‚ note 308, at 923-29.

313‚ See‚ Warden v. Hayden, 387 U.S. 294 (1967) (holding that police can obtain even indirect evidence by use of search warrants).‚ Hayden‚ overturned at least five previous Supreme Court decisions by declaring that “privacy” rather than property was the “principle object of the Fourth Amendment.”‚ Id. at 296 n.l, 304.

314‚ See‚ Frisbie v. Butler, 1 Kirby 213 (Conn. 1787).

315‚ See, e.g., Stevens v. Fassett, 27 Me. 266 (1847) (involving defendant who had obtained two arrest warrants against plaintiff without officer assistance); State v. McAllister, 25 Me. 490 (1845) (involving crime victim who swore out warrant affidavit against alleged assailant); State v. J.H., 1 Tyl. 444 (Vt. 1802) (quashing criminal charge gained by unsworn complaint of private individual).

316‚ See‚ Humes v. Taber, 1 RI. 464 (1850) (involving search by sheriff accompanied by private persons).

317‚ See‚ Kimball v. Munson, 2 Kirby (Conn.) 3 (1786) (upholding civil damages against two men who arrested suspect without warrant to obtain reward).

318‚ See‚ Wasserstrom,‚ supra‚ note 70, at 289.

319‚ The Framers regarded private persons acting under color of “public authority” to be subject to constitutional constraints like the proscription against double jeopardy..See‚ Stevens v. Fassett, 27 Me. 266 (1847) (holding private prosecutors were prohibited from twice putting a defendant in jeopardy for the same offense).

320‚ 256 U.S. 465 (1921).

321‚ Burdeau v. McDowell‚ involved a corporate official (McDowell) who was fired by his employer for financial malfeasance at work. After McDowell’s termination, company representatives raided his office, opened his safe, and rifled through his papers.‚ See id. at 473. Upon finding incriminating evidence against McDowell, company representatives alerted the United States Justice Department and turned over certain papers to the government. A district judge ordered the stolen papers returned to McDowell before they could be seen by a grand jury. The Supreme Court reversed, stating the Fourth Amendment “was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies.”‚ Id. at 475.

322‚ See‚ Cloud,‚ supra‚ note 297, at 1716 (discussing transition during early 1700s from concept that ‘a man’s house is his castle (except against the government)’ to the legal adage that ‘a man’s house is his castle (especially against the government)’).

323‚ Massachusetts and Vermont apparently required that only public officers execute search warrants in the early nineteenth century.‚ See Commonwealth v. Foster, 1 Mass. 488 (1805) (holding justice of peace had no authority to issue a warrant to a private person to arrest a criminal suspect); State v. J.H., 1 Tyl. 444 (Vt. 1802).

324‚ See‚ Bissell v. Bissell, 3 N.H. 520 (1826).

325‚ See Kimball v. Munson, which upheld civil damages against two men who arrested an alleged horse thief without warrant in response to a constable’s reward offer. 2 Kirby 3 (Conn. 1786). Kimball suggested the two private persons would have been protected from liability had they secured a warrant soon after their arrest of the suspect.‚ See also‚ Frisbie v. Butler, 1 Kirby 213 (Conn. 1787) (applying specificity requirement to search warrant issued to private person).

326‚ See‚ Del Col v. Arnold, 3 U.S. (3 Dall.) 333 (1796) (holding that “privateers” on the open seas who capture illegal vessels under the auspices of government authority act at their own peril and may be held liable for all damages to the captured vessels ‚” even where the captured vessels are engaged in crimes on the high seas).

327‚ See‚ Humes v. Taber, 1 R.I. 464 (1850)

328‚ See‚ Melvin v. Fisher, 8 N.H. 406, 407 (1836) (saying “he who causes another to be arrested by a wrong name is a trespasser, even if the process was intended to be against the person actually arrested).

329‚ See‚ Holley v. Mix, 3 Wend. 350 (N.Y. 1829).

330‚ See‚ Kimball v. Munson, 2 Kirby 3 (Conn. 1786) (faulting two arrestors for failing to obtain a proper warrant immediately after their warrantless arrest of a suspected felon); Knot v. Gay, 1 Root 66, 67 (Conn. 1774) (stating warrantless arrest is permitted “where an highhanded offense had been committed, and an immediate arrest became necessary, to prevent an escape”).

331‚ See‚ Wade v. Chaffee, 8 R.I. 224 (R.I. 1865) (holding a constable is not bound to procure a warrant before arresting a felon even though there may be no reason to fear the escape of the felon).

332‚ See, e.g., Oleson v. Pincock, 251 P. 23, 25 (Utah 1926); Burroughs v. Eastman, 59 N.W. 817 (Mich. 1894); Minnesota v. Cantieny, 24 N.W. 458 (Minn. 1885); William A. Schroeder,‚ Warrantless Misdemeanor Arrests and the Fourth Amendment, 58 Mo. L. REV. 790-91 (1993).

333‚ See‚ Schroeder,‚ supra‚ note 101, at 784 n.14-16 (listing eight jurisdictions allowing such arrests).

334‚ But see id. at 791 n.39 (listing four cases that have held warrantless arrests for crimes committed outside an officer’s presence unconstitutional).

335‚ See id. at 779-81 n.13 (providing two pages of statutory provisions allowing warrantless arrest for domestic violence and other specific misdemeanors).

336‚ See‚ Welsh v. Wisconsin, 466 U.S. 740 (1984) (requiring warrant to forcibly enter a home to arrest someone inside for a misdemeanor traffic offense); Payton v. New York, 445 U.S. 573, 589 (1980) (requiring warrant to forcibly enter a home to arrest a suspected felon unless exigent circumstances prevail).

337‚ See‚ United States v. Watson, 423 U.S. 411, 412 (1976).‚ Watson‚ represents one of the starkest redrawings of search and seizure law ever pronounced by the Supreme Court. Essentially, the Court declared that officers may arrest without warrant wherever they have probable cause. Justice Thurgood Marshall released a blistering dissent accusing the majority of betraying the “the only clear lesson of history” that the common law “considered the arrest warrant far more important than today’s decision leaves it.”‚ Id. at 442 (Marshall, J., dissenting).

338‚ United States v. Hensley, 469 U.S. 221, 229 (1985).

339‚ See‚ Conner v. Commonwealth, 3 Bin. 38, 42-43 (Pa. 1810) (insisting that public safety alone justifies exceptions to the warrant requirement).

340‚ See‚ Tennessee v. Garner, 471 U.S. 1, 14 (1985). The number of crimes considered felonies varied greatly according to location and period. Plymouth Colony knew only seven in 1636: treason, willful murder, willful arson, conversing with the devil, rape, adultery, and sodomy.‚ See Julius Goebel, Jr.,‚ King’s Law and Local Custom in Seventeenth Century New England, 31 COLUM. L. REV. 416, n.43 (1931). In general, the American colonists considered far fewer crimes to be felonies than did the people of England.‚ C.f. Thorp L. Wolford,‚ The Laws and Liberties of 1648, reprinted in‚ ESSAYS IN THE HISTORY OF EARLY AMERICAN LAW 147, 182 (David H. Flaherty, ed. 1969) (saying there were far more felonies in English than in Massachusetts law).

341‚ JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW 253 (2d ed. 1995).

342‚ United States v. Rabinowitz, 339 U.S. 56, 70 (1950) (Frankfurter, J. dissenting).

343‚ See‚ United States v. Watson, 423 U.S. 411, 439-440 (1976).

344‚ But see id. at 438 (Marshall, J., dissenting) (“[T]he fact is that a felony at common law and a felony today bear only slight resemblance, with the result that the relevance of the common-law rule of arrest to the modern interpretation of our Constitution is minimal”).

345‚ See‚ WAYNE R. LAFAVE & JEROLD H. ISRAEL, CRIMINAL PROCEDURE 20 (2d ed. 1992).

346‚ See‚ AMAR,‚ supra‚ note 287, at 44. The remedial suggestions proposed by Amar (strict liability tort remedies, class actions, attorneys’ fees, statutorily-generated punitive damages, and injunctive relief) are, if anything, less loyal to originalist ideals than the warrant requirement he criticizes.‚ See‚ Carol S. Steiker,Second Thoughts About First Principles, 107 HARV. L. REV. 820, 828 (1994) (suggesting Amar’s departures from the Framer’s intent regarding remedies belie his proclaimed adherence to the Framers’ “vision” regarding warrants, probable cause and the exclusionary rule).

347‚ See‚ AMAR,‚ supra‚ note 287, at 44 n. 226 (saying the “government should generally not prevail” in Amar’s type of ideal tort actions).

348‚ See‚ AMAR‚ supra‚ note 287, at 12.

349‚ See‚ Wasserstrom,‚ supra‚ note 70, at 289 (saying false arrest was subject to strict liability in colonial times).

350‚ See‚ Holley v. Mix, 3 Wend. 350, 354 (N.Y. 1829) (stating if any person charge another with felony, the charge will justify an officer taking the suspect in custody, but the person making the charge will be liable for false arrest if no felony was committed).

351‚ See‚ Clarke v. Little, 1 Smith 100, 101 (N.H. 1805) (addressing liabilities of deputy to debtor’s creditors).

352‚ Hall v. Brooks 8 Vt. 485 (1836) (holding constable liable for refusing to serve court process).

353‚ See‚ Shewel v. Fell, 3 Yeates 17, 22 (Pa. 1800) (holding sheriff liable to prisoner’s creditor for entire debt of prison escapee).

354‚ See‚ Chapman v. Bellows, 1 Smith 127 (N.H. 1805).

355‚ See‚ Morse v. Betton, 2 N.H. 184, 185 (1820).

356‚ See‚ Lamb v. Day, 8 Vt. 407 (1836) (holding constable liable for allowing mare in his custody to be used); Bissell v. Huntington, 2 N.H. 142. 146-47 (1819).

357‚ See‚ Webster v. Quimby, 8 N.H. 382, 386 (1836).

358‚ See‚ Administrator of Janes v. Martin, 7 Vt. 92 (Vt. 1835).

359‚ See‚ Kittredge v. Bellows, 7 N.H. 399 (1835).

360‚ See‚ Herrick v. Manly, 1 Cai. R. 253 (N.Y. Sup. Ct. 1803).

361‚ See‚ Bromley v. Hutchins, 8 Vt. 194, 196 (Vt. 1836).

362‚ See‚ Hazard v. Israel, 1 Binn. 240 (Pa. 1808).

363‚ See‚ Fullerton v. Mack, 2 Aik. 415 (1828).

364‚ See‚ Rex v. Gay, Quincy, Mass. Rep. 1761-1772 (1763) (acquitting defendant who battered sheriff when sheriff attempted arrest with warrant irregular on its face).

365‚ See‚ Percival v. Jones, 2 Johns. Cas. 49, 51 (N.Y. 1800) (holding justice of peace liable for issuing arrest execution against person privileged from imprisonment).

366‚ See id.

367‚ See‚ Preston v. Yates, 24 N.Y. 534 (1881) (involving sheriff who obtained indemnity bond from private party).

368‚ See‚ Grinnell v. Phillips, 1 Mass. 530, 537 (1805) (involving Massachusetts statute requiring officers to be bonded).

369‚ See‚ Tilley v. Cottrell, 43 A. 369 (R.I. 1899) (holding constable liable for damages against him for which his indemnity bond did not cover).

370‚ C.f. White v. French, 81 Mass. 339 (1860) (involving officer arrested when his obligor failed to pay for officer’s liability); Treasurer of the State v. Holmes, 2 Aik. 48 (Vt. 1826) (involving sheriff jailed for debt in Franklin County, Vermont).

371‚ At the time of Founding, juries remedied improper searches and seizures by levying heavy damages from officers who conducted them.‚ See‚ AMAR,‚ supra‚ note 287, at 12. The ratification debates made it clear that no method of curbing “the insolence of office” worked as well as juries giving “ruinous damages whenever an officer has deviated from the rigid letter of the law, or been guilty of any unnecessary act of insolence or oppression.” Maryland Farmer,‚ Essays by a Farmer‚ (1),‚ reprinted in‚ THE COMPLETE ANTI-FEDERALIST 5, 14 (Herbert J. Storing ed., 1981). Punitive damages were apparently common in search and seizure trespass cases, and provided “an invaluable maxim” for securing proper and reasonable conduct by public officers. Today, however, municipalities never have to pay out punitive damages.‚ See‚ Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981).

372‚ See‚ Johnson v. Georgia, 30 Ga. 426 (1860) (holding that a policeman is as much under protection of the law as any public officer).

373‚ Many Founding-Era constitutions contained statements declaring a right of remedy for every person.‚ See, e.g., DEL. CONST. of 1776, ƒ¯‚¿‚½ 12 (providing that “every freeman for every injury done him in his goods, lands or person, by any other person, ought to have remedy by the course of the law of the land”); MASS. CONST. of 1780, art. I, ƒ¯‚¿‚½ XI (providing “Every subject of the commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs”); N.H. CONST. of 1784, part I, ƒ¯‚¿‚½ XIV (stating “Every subject of this state is entitled to a certain remedy”). Some early proposals for the national Bill of Rights also included such remedy provisions.‚ See, e.g., Proposed Amended Federal Constitution, April 30, 1788,‚ reprinted in‚ THE ORIGIN OF THE SECOND AMENDMENT: A DOCUMENTARY HISTORY OF THE BILL OF RIGHTS 1787-1792 790, 791 (David E. Young, ed.) (2d ed. 1995) (providing that “every individual… ought to find a certain remedy against all injuries, or wrongs”).

374‚ C.f. THE DECLARATION OF INDEPENDENCE para. 11 (U.S. 1776) (“He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance”).

375‚ A small history lesson regarding the early development of officer immunity is provided in‚ Seaman v. Patten, 2 Cai. R. 312 (N.Y. Sup. Ct. 1805). Early tax and custom enforcement agents were unsworn volunteers, having “generally received a portion of the spoil.”‚ Id. at 315. Corresponding to this system, such agents acted at their own peril and were civilly liable for their every impropriety. This “hard rule” of high officer liability was still in force a generation after the Constitution was ratified, although courts began to hold officers less accountable for their mistakes when officers became sworn to perform certain ever-more-difficult duties.‚ See id.

376‚ See Seaman, 2 Cai. R. at 317; Bissell v. Huntington, 2 N.H. 142, 147 (1819) (declaring that sheriffs good faith acts should receive “most favourable construction.”). “[N]either the court, the bar, nor the public should favor prosecutions against them for petty mistakes.”‚ Id. at 147.

377‚ See‚ Diana Hassel,‚ Living a Lie; The Cost of Qualified Immunity, 64 Mo. L. REV. 123, 151 n. 122.

378‚ State v. Dunning, 98 S.E. 530, 531 (N.C. 1919).

379‚ See, e.g., Stinnett v. Commonwealth, 55 F.2d 644, 647 (4th‚ Cir. 1932) (reversing jury verdict against officer on grounds that “courts should not lay down rules which will make it so dangerous for officers to perform their duties that they will shrink and hesitate from action”); State v. Dunning, 98 S.E. 530 (N.C. 1919) (reversing criminal verdict against officer who shot approaching man on grounds that the officer enjoyed a privilege to use deadly force instead of retreating).

380‚ The Supreme Court’s recent jurisprudence has offered a more relaxed definition of “probable cause” as a “fluid concept” of “suspicion” rather than a fixed standard of probability.‚ See‚ Wasserstrom,‚ supra note 70, at 337 (analyzing Justice Rehnquist’s opinion in‚ Illinois v. Gates).

381‚ See‚ Grau v. United States, 287 U.S. 124, 128 (1932),‚ overturned by‚ Brinegar v. United States, 338 U.S. 160 (1949).

382‚ Wasserstrom,‚ supra‚ note 70, at 274.

383‚ See‚ AMAR,‚ supra‚ note 287, at 20. Judges of the Founding era appear to have been somewhat more reluctant than modern judges to issue search and seizure warrants. For an early example of judicial scrutiny of warrant applications, see United States v. Lawrence, 3 U.S. 42 (1795) (upholding refusal of district judge to issue warrant for arrest of French deserter in the face of what government claimed was probable cause). Today, search warrant applications are rarely denied. The “secret wiretap court” established by Congress to process wiretap applications in 1978, has rejected only one wiretap request in its 22-year life.‚ See‚ Richard Willing,‚ Wiretaps sought in record numbers, USA TODAY, June 5, 2000, at A1 (saying the court approved 13,600 wiretap requests in the same period).

384‚ Private persons were liable if, for example, their complaint was too vague as to the address to be searched,‚ see‚ Humes v. Taber, 1 R.I. 464 (1850); misspelled the name of the accused,‚ see‚ Melvin v. Fisher, 8 N.H. 406, 407 (1836) (saying “he who causes another to be arrested by a wrong name is a trespasser, even if the process was intended to be against the person actually arrested); or called for the execution of a warrant naming a “John Doe” as a target,‚ see‚ Holley v. Mix, 3 Wend. 350 (N.Y. 1829).

385‚ See‚ Hervey v. Estes, 65 F.3d 784 (9th‚ Cir. 1995) (involving challenge to search warrant wrongfully obtained through false references to anonymous sources).

386‚ See‚ Hummel-Jones v. Strope, 25 F.3d 647 (8th‚ Cir. 1994) (involving police officer’s failure to disclose to judge that an undercover deputy sheriff was the “confidential informant” referred to in a search warrant application).

387‚ See‚ David B. Kopel & Paul H. Blackman,‚ The Unwarranted Warrant: The Waco Search Warrant and the Decline of the Fourth Amendment, 18 HAMLINE J. PUB. L & POL’Y 1, 13 (saying Waco warrant was filled with statements irrelevant to Koresh’s alleged firearm violations).

388‚ See id. at 21 (noting ATF agent’s false claims that various spare parts were machine gun conversion kits).

389‚ See‚ ALAN M. DERSHOWITZ, THE ABUSE EXCUSE AND OTHER COP-OUTS, SOB STORIES, AND EVASIONS OF RESPONSIBILITY 235 (1994).

390‚ Id. at 233.

391‚ The 1920’s saw an explosion of police privilege to oversee two separate ‚” but often interrelated ‚” elements of American life: Prohibition and the automobile.‚ See‚ FRIEDMAN,‚ supra‚ note58, at 300 (saying search and seizure became a particularly salient issue during Prohibition). In 1925, the Supreme Court, by split decision, released an opinion that would grow within the next 75 years into an immense expansion of police prerogatives while at the same time representing an enormous loss of personal security for American automobile travelers.‚ Carroll v. United States‚ upheld a warrantless search of an automobile for liquor as valid under the infamous Volstad Act, enacted to breathe life into the Eighteenth Amendment. 267 U.S. 137 (1925). The Carroll opinion led lower courts to more than one interpretation,‚ see‚ Francis H. Bohlen & Harry Shulman,‚ Arrest With and Without a Warrant, 75 U. Pa. L. Rev. 485, 488-89 (1927) , but slowly became recognized as a pronouncement of an “automobile exception” to the warrant requirement.‚ See‚ United States v. Ross, 456 U.S. 798, 822 (1982).

Two decades after‚ Carroll, Justice Robert H. Jackson tried in earnest to force the genie back into the bottle by narrowing the automobile exception to cases of serious crimes, but a 7-2 majority outnumbered him.‚ See‚ Brinegar v. United States, 338 U.S. 160, 180-81 (1949) (Jackson, J., dissenting). SinceBrinegar, the “automobile exception” has been a fixture of Fourth Amendment jurisprudence, and has greatly expanded. The automobile exception now accounts for the broadest umbrella of warrant exceptions.‚ See, e.g., California v. Acevedo, 500 U.S. 565 (1991) (allowing warrantless search of containers in automobiles even without probable cause to search the vehicle as a whole). Indeed, the automobile exception has expanded so far that it has made a mockery of Fourth Amendment doctrine. As Justice Scalia pointed out in his‚ Acevedo‚ concurrence, an anomaly now exists protecting a briefcase carried on the sidewalk from warrantless search but allowing the same briefcase to be searched without warrant if taken into a car.‚ Acevedo‚ at 581 (Scalia, J., concurring).

392‚ Police surveillance of American roadways has brought the bar of justice far closer to most Americans than ever before. Few accounts of the sheer scale of traffic stops are available, but anecdotal evidence suggests traffic encounters with police number in the hundreds of millions annually. In North Carolina alone, more than 1.2 million traffic infractions were recorded in a single year.‚ See‚ FRIEDMAN,‚ supra‚ note 58, at 279. Of actual traffic stops, no reliable estimate can be made.

393‚ See‚ SKOLNICK & FYFE,‚ supra‚ note 63, at 99.

394‚ In‚ Delaware v. Prouse, 440 U.S. 648 (1979), the Supreme Court actually considered, but stopped short of, allowing cops to randomly stop any traveler without any particularized reason ‚” with one justice (Rehnquist) arguing that cops may do so.‚ Prouse, 440 U.S. at 664 (Rehnquist, J., dissenting).

395‚ See‚ Flanders v. Herbert, 1 Smith (N.H.) 205 (1808) (finding constable who stopped a driver and horse team pursuant to an invalid writ of attachment liable for trespass). Private tort principles rather than state licensing programs governed highway travel at the time of the Framers.‚ See‚ Kennard v. Burton, 25 Me. 39 (1845).

396‚ See‚ David Rudovsky,‚ The Criminal Justice System and the Role of the Police, in‚ THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE, 242, 247 (David Kairys, ed. 1982).

397‚ Id.

398‚ Prior to the imposition of the exclusionary rule in‚ Mapp v. Ohio, 367 U.S. 643 (1961), the Cincinnati police force rarely applied for search warrants. In 1958, the police obtained three warrants. In 1959 the police obtained none.‚ See‚ Bradley C. Canon,‚ Is the Exclusionary Rule in Failing Health?: Some New Data and a Plea Against a Precipitous Conclusion, 62‚ KENTUCKY L. J. 681, 709 (1974). Similarly, the use of search warrants by the New York City Police Department prior to‚ Mapp‚ was negligible, but afterward, over 5000 warrants were issued.‚ See Wasserstrom,‚ supra‚ note 70, at 297 n. 203.

399‚ Brinegar v. United States, 338 U.S. 160, 181 (1949) (Jackson, J., dissenting) (expressing belief that many unlawful searches are never revealed because no evidence is recovered).

400‚ See‚ Weeks v. United States, 232 U.S. 383 (1914).

401‚ 367 U.S. 643 (1961).

402‚ 384 U.S. 436 (1966).

403‚ See‚ AMAR,‚ supra‚ note 287, at 21 (claiming “[s]upporters of the exclusionary rule cannot point to a single major statement from the Founding ‚” or even the antebellum or Reconstruction eras ‚” supporting Fourth Amendment exclusion of evidence in a criminal trial”).

404‚ See‚ BURTON S. KATZ, JUSTICE OVERRULED: UNMASKING THE CRIMINAL JUSTICE SYSTEM 43 (1997) (saying in two consecutive sentences that “[t]he exclusionary rule has failed in its only goal” but that “[t]he cost… is almost unbelievably high”).

405‚ See, e.g., id. at 43 (saying‚ Mapp‚ was the “culmination of an activist judicial trend”).

406‚ Fred E. Inbau,‚ Public Safety v. Individual Civil Liberties: The Prosecutor’s Stand, 53 J. CRIM. L., CRIMINOLOGY & P. S. 85 (1962),‚ reprinted in‚ 89 J. CRIM. L. & CRIMINOLOGY 1413, 1413 (1999) (emphasis added).

407‚ Miranda v. State of Arizona, 384 U.S. 436, 516 (1966) (Harlan, J., dissenting) (saying “the Court is taking a real risk with society’s welfare in imposing its new regime on the country. The social costs of crime are too great to call the new rules anything but a hazardous experimentation.”).

408‚ Id. at 542 (White, J., dissenting).

409‚ See‚ J. Richard Johnston,‚ Plea Bargaining in Exchange for Testimony: Has‚ Singleton‚ Really Resolved the Issues?, CRIMINAL JUSTICE, Fall 1999, at 32 (quoting from Ed Cray’s biography of Earl Warren,‚ Chief Justice).

410‚ See id.

411‚ David Rudovsky,‚ The Criminal Justice System and the Role of the Police, in‚ THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE 246 (David Kairys, ed. 1982).

412‚ Six years prior to the Mapp‚ decision, the influential California Supreme Court justice Roger Traynor concluded that exclusion was necessary to level the playing field between state and citizen. “It is morally incongruous,” wrote Traynor, “for the state to flout constitutional rights and at the same time demand that its citizens observe the law.” People v. Cahan, 282 P.2d 905, 911 (Cal. 1955).

413‚ See‚ Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 392 (1971).

414‚ See‚ Illinois v. Krull, 480 U.S. 340, 362 (1987) (O’Connor, J., dissenting) (saying the exclusionary rule is much more soundly based in history than is popularly thought).

415‚ 232 U.S. 383 (1914).

416‚ See, e.g., Katz,‚ supra‚ note 214, at 43 (saying there was no exclusionary rule for 123 years and “[t]here is a good reason for that.”).

417‚ 116 U.S. 616 (1886).

418‚ See‚ AMAR,‚ supra‚ note 287, at 146 (explaining that the Supreme Court reported very few criminal cases of any kind until the end of the 1800’s).

419‚ In the course of researching other matters for this article, I stumbled across a small number of‚ pre-Boyd‚ cases appearing to stand for variations of the exclusionary rule.‚ See‚ In re May, 1 N.W. 1021 (Mich. 1879) (ordering release of prostitute arrested without warrant); People v. Crocker, 1 Mich. 31 (1869) (ordering discharge of defendant arrested by unsigned warrant); Commonwealth v. Foster, 1 Mass. 488 (1805) (overturning jury’s guilty verdict where defendants were arrested pursuant to faulty arrest warrant); State v. J.H., 1 Tyl. 444 (Vt. 1802) (ordering discharge of person arrested upon warrant where no clear evidence of complainant’s oath appeared).

The earliest case I discovered to mention the question of exclusion was‚ Frisbie v. Butler, 1 Kirby 213 (Conn. 1787), a case that preceded the Bill of Rights by four years.‚ Frisbie‚ found a warrant plainly illegal, but stated “yet, how far this vitiates the proceedings upon the arraignment, may be a question, which is not necessary now to determine.”‚ Id. at 215. While this case by no means applied the rule of exclusion, it quite clearly establishes that exclusion was a consideration in the minds of Founding-era judges.

And while the rules of the above cases are subject to interpretation, they at least stand for the proposition that an unlawful seizure, by itself, has an impact on a subsequent criminal prosecution. This rule is actually far more favorable to criminal defendants than modern Supreme Court allows. See New York v. Harris, 495 U.S. 14 (1990) (holding that police may detain a suspect even though they improperly arrested him); Frisbie v. Collins, 342 U.S. 519 (1952) (holding an invalid arrest is not a defense to the offense charged).

I cannot believe that my list of cases is in any way exhaustive. While I have not undertaken any systematic study of this matter, the cases I cite suggest to me that the exclusionary rule (or some remedial rule quite similar to the exclusionary rule) may have far stronger historical roots than it is credited with.

420‚ See‚ Roger Roots,‚ If It’s Not a Runaway, It’s Not a Real Grand Jury, 33 CREIGHTON L. REV. 821 (2000).

421‚ See id.

422‚ See‚ U.S. CONST. amend. V (providing no person “shall be compelled in any criminal case to be a witness against himself).

423‚ See‚ Miranda v. Arizona, 384 U.S. 436 (1966).

424‚ See‚ SKOLNICK & FYFE,‚ supra‚ note 63, at 61.

425‚ See‚ Dickerson v. United States, 530 U.S. 428 (2000).

426‚ Id. at 435 n. l.

427‚ See id. at 435.

428‚ Id. at 434 (Scalia, J., dissenting).

429‚ C.f. Hayes v. Missouri, 120 U.S. 68, 70 (1887) (recognizing that impartiality in criminal cases requires that “[b]etween [the accused] and the state the scales are to be evenly held”); Unites States v. Singleton, 165 F.3d 1297, 1314 (10th‚ Cir. 1999) (Kelly, J., dissenting) (speaking of “the policy of ensuring a level playing field between the government and defendant in a criminal case”).

430‚ See‚ BOOZHIE,‚ supra‚ note 10, at 238.

431‚ See id.

432‚ G. Gordon Liddy points out in his 1980 autobiography‚ Will‚ that when the courts began requiring that the FBI provide defense attorneys with FBI reports on defendants, the FBI circumvented such orders by recording investigation notes on unofficial attachments which were never provided to the defense.‚ SeeG. GORDON LIDDY, WILL 354 (1980).

433‚ See, e.g., id. at 216 (reporting 1996 St. Louis case in which police released arrest record of dead person whom police had killed to damage his reputation);‚ id. at 238 (reporting 1998 New York case in which police released rap sheet of their victim but withheld identity of involved officers);‚ id. at 240 (reporting case in which police revealed dead suspect was on parole and used his case to call for abolishing parole).

434‚ Perhaps the most extreme example of lopsided investigative resources occurred in the Oklahoma City bombing case in 1995. Defense attorneys complained that “the resources of every federal, state, and local agency in the United States” were at the government’s disposal ‚” including a 24-hour FBI command center with 400 telephones to coordinate evidence-gathering for the prosecution.‚ See‚ Petition For Writ of Mandamus of Petitioner-Defendant, Timothy James McVeigh at 13, McVeigh v. Matsch (No. 96-CR-68-M) (10th‚ Cir. Mar. 25, 1997). In contrast, the defense complained that “without subpoena power, without the right to take depositions, and without access to national intelligence information, the McVeigh defense can go no further.”‚ Id. at 4.

435‚ See‚ Brady v. Maryland, 373 U.S. 83 (1963) (finding that suppression of evidence favorable to defense violates due process). Prosecutors are required by the Brady‚ doctrine to reveal exculpatory evidence in their possession or in the possession of the investigating agency.‚ See‚ United States v. Zuno-Arce, 44 F3d 1420 (9th Cir. 1995). Only one federal court of appeals has held that prosecutors are imputed to hold knowledge of information “readily available” to them and require such knowledge to be transferred to the defense.‚ See‚ Williams v. Whitley, 940 F2d 132 (5th Cir. 1991). However, nothing in the law mandates that police look for exculpatory evidence.

436‚ See, e.g., STOLEN LIVES,‚ supra‚ note 123, at 248 (reporting 1997 New York City case in which officers closed off scene of shooting by police for a half an hour after the shooting). Upon being allowed to enter the shooting scene, observers noticed that police had moved large kitchen table to the side of room to make police claim that victim (who had apparently been on other side of the table from officers) had lunged at them more plausible.‚ See id.

437‚ See‚ BOOZHIE,‚ supra‚ note 10, at 238.

438‚ Brewer v. Williams, 430 U.S. 387, 417 (1977) ( Burger, J., dissenting).

439‚ BOOZHIE,‚ supra‚ note 10, at 238.

440‚ See‚ PAUL MARCUS, THE ENTRAPMENT DEFENSE 3 (2d ed. 1995).

441‚ See id. at 3-4.

442‚ See‚ Blaikie v. Linton, 18 Scot. Law Rep. 583 (1880).

443‚ See‚ Regina v. Bickley, 2 Crim. App. R. 53, 73 J.P.R. 239 (C.A. 1909).

444‚ Brannan v. Peek, 2 All E.R. 572, 574 (Q.B. 1947).

445‚ Id.

446‚ 223 F. 412 (9th Cir. 1915).

447‚ Rivera v. State, 846 P.2d 1, 11 (Wyo. 1993).

448‚ SKOLNICK & FYFE,‚ supra‚ note 63, at 102 (quoting Paul Chevigny).

449‚ See id. See also‚ STOLEN LIVES,‚ supra‚ note 123, at 302. Kevin McCoullough, who was suing the City of Chattanooga for unjust imprisonment, was shot dead by police at his workplace after he allegedly threw or ran at police with a metal object. McCoullough had predicted his own murder by police in statements to co-workers.‚ See id.

450‚ See id. (citing President’s Commission on Law Enforcement and Administration of Justice study).

451‚ See‚ FRIEDMAN,‚ supra‚ note 58, at 154 (citations omitted).

452‚ JEFFREY REIMAN, THE RICH GET RICHER AND THE POOR GET PRISON: IDEOLOGY, CLASS, AND CRIMINAL JUSTICE 166 (5th‚ ed. 1997).

453‚ See‚ HERBERT MITGANG, DANGEROUS DOSSIERS (1988). The FBI kept a 207-page file on cartoonist Bill Mauldin, a 153-page file on book publisher Alfred A. Knopf, and a 23-page file on Lincoln biographer Carl Sandburg, for example.‚ See id. at 249, 195, and 81.

454‚ The Fraternal Order of Police (FOP), the largest police organization in the United States, has over 270,000 members and has been named one of the most powerful lobbying groups in Washington.‚ See‚ National Fraternal Order of Police,‚ Press Release, Sept. 17, 1997,‚ available at<http://www.mofop.org/power>.

455‚ An example of the police lobby’s power is its ability to scuttle asset forfeiture reform. The International Association of Chiefs of Police (IACP) managed to keep congressional leaders from attaching forfeiture reform to budget legislation in 1999.‚ See‚ IACP,‚ End of Session Report for the 1st‚ Session of 106thCongress: FY 2000 Funding Issues, Jan. 17, 2000.‚ See also‚ Peter L. Davis,‚ Rodney King and the Decriminalization of Police Brutality in America, 53 MD. L. REV. 271, 281 n.40 (1994). Police unions in many jurisdictions successfully thwart efforts to establish civilian review boards.‚ See id. at 282.

456‚ See‚ Richard Willing,‚ High Court Restricts Police Power to Frisk, USA TODAY, Mar. 29, 2000, 4A.

Disecting the Drivers License Law – in progress….

INTRODUCTION

I will try to make this as simple as possible, but you will have to pay very close attention and abandon everything you have previously believed regarding drivers licenses. Despite what you believe about what you “think” should be done to regulate others who use their vehicle for personal transportation, keep in mind that the government has not been endowed with general authority in requiring people to apply for, and possess, licenses for their private actions. There are words which you will need to pay close attention to, and not assume you know the meaning, since they have been specifically defined in the statutes. Words such as, “resident”, “natural person”, “State”, “licensee”, “drive, “motor vehicle”…etc. Do not automatically assume the words have the same meaning as your everyday usage. Do not automatically assume the definitions apply to you.

The Illinois Vehicle Code was enacted by P.A. 76-1586, effective July 1, 1970. The Code constitutes a consolidated recodification of various earlier laws and acts including the Illinois Motor Vehicle Law of 1957.‚ There has not always been licensing for drivers. As with any new thing, people were allowed to engage as they saw fit until government identified either a taxable nexus or some contrived intervention through public safety. Early automobiles were crude, and sometimes dangerous. They definitely did not afford the optimal protection for the occupants. Back in the day, the government used to intervene under what is called the police power, and generally for the regulation of businesses or occupations only. Of the states I researched, that seems to be the methodology for evolving driver licensing regulations. I am using Illinois as the example because it is where I have lived the longest and had access to state records and proceedings which chronicle the driver licensing legislation. The other states have the same constitutional limitations on licensing, and have also a similar history in implementing the driver license laws. This began with an individual state purpose for regulating commercial activities, and has evolved into a quasi-federal regulated use of the roads as a privilege for residents.

Besides the obvious questions in a discussion such as this, there are other questions as well. What is a State? What is a person? What is driving? Who were the first licensed drivers? Are traffic violations crimes? Is everyone required to have a license? Are licensing laws federal in nature, or state law? I’ll attempt to answer these questions without having to go into detail about the nature and types of law, as well as what is within the control of legislatures to license. Every law, must find its source in the constitution of the state or federal government. Constitutions do not give government unbridled authority except for what we say they “can’t do”, but they have limited authority by way of what we say then “can do”.

 

BACKGROUND ON INTERPRETING LAW AND WEBSTER’S DICTIONARY – “WHAT YOU TALKING ABOUT WILLIS”

When reading law, you can’t assume words mean the same as the common parlance of the day. There are complicated, and sometimes convoluted, ways if “interpreting” the law. I don’t know why legislators can’t write what they mean, but it seems apparent that there may be an intent to obfuscate in order to keep the real meaning and application of some laws out of the reach of the common man. There are doctrines such as “void for vagueness” which render some laws moot, but for the most part there are rules for interpreting law. This is called statutory interpretation.

Without belaboring this subject and further complicating the issue, I’ll summarize briefly and leave you to inquire further about the various canons and doctrines for interpretation. For the purpose of this article, below are the common canons of construction considered. To the left of the canon I will provide an abbreviation which will later be used to signify its application to the text. For example, Plain meaning will be represented with (PM), and appear at the end of a text indicating that is the canon used in interpreting the text. There may be multiple canons used in interpreting a text.

(PM) – Plain meaning
When writing statutes, the legislature intends to use ordinary English words in their ordinary senses. The United States Supreme Court discussed the plain meaning rule in Caminetti v. United States, 242 U.S. 470 (1917), reasoning “[i]t is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain… the sole function of the courts is to enforce it according to its terms.” And if a statute’s language is plain and clear, the Court further warned that “the duty of interpretation does not arise, and the rules which are to aid doubtful meanings need no discussion.”

(EG) – Ejusdem generis (“of the same kinds, class, or nature”)
When a list of two or more specific descriptors is followed by more general descriptors, the otherwise wide meaning of the general descriptors must be restricted to the same class, if any, of the specific words that precede them. For example, where “cars, motor bikes, motor powered vehicles” are mentioned, the word “vehicles” would be interpreted in a limited sense (therefore vehicles cannot be interpreted as including airplanes).

(EU) – Expressio unius est exclusio alterius (“the express mention of one thing excludes all others”)
Items not on the list are assumed not to be covered by the statute. However, sometimes a list in a statute is illustrative, not exclusionary. This is usually indicated by a word such as “includes” or “such as”.

(IP) – In pari materia (“upon the same matter or subject”)
When a statute is ambiguous, its meaning may be determined in light of other statutes on the same subject matter.

(NS) – Noscitur a sociis (“a word is known by the company it keeps”)
When a word is ambiguous, its meaning may be determined by reference to the rest of the statute.

(RS) – Reddendo singula singulis (“refers only to the last”)
When a list of words has a modifying phrase at the end, the phrase refers only to the last, e.g., firemen, policemen, and doctors in a hospital.

(GS) – Generalia specialibus non derogant (“the general does not detract from the specific”)
Described in The Vera Cruz (1884) 10 App. Cas. 59 as: “Now if anything be certain it is this, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any evidence of a particular intention to do so.” This means that if a later law and an earlier law are potentially‚”but not necessarily‚”in conflict, courts will adopt the reading that does not result in an implied repeal of the earlier statute. Lawmaking bodies usually need to be explicit if they intend to repeal an earlier law.

‚ LEGAL DEFINITIONS – A ROSE, BY ANY OTHER NAME, MAY BE A FIRM, COPARTNERSHIP, ASSOCIATION, OR CORPORATION

So, just what is a “license to drive”? Well, by definition a license is permission to do something that is otherwise illegal.

License:‚ http://legal-dictionary.thefreedictionary.com/license‚ -‚ The permission granted by competent authority to exercise a certain privilege that, without such authorization, would constitute an illegal act, a‚ Trespass‚ or a‚ tort.‚ The certificate or the document itself that confers permission to engage in otherwise proscribed conduct.

Notice the word “privilege”. It is used throughout the statutes as well. You will often hear that “driving is a privilege”. In a sense, that is true, since driving is a specific activity and not necessarily what many of you do with your automobile.‚  Let’s look at what a privilege is:

Privilege:‚ http://legal-dictionary.thefreedictionary.com/privilege‚ -‚ privilege n. a special benefit, exemption from a duty, or immunity from penalty, given to a particular person, a group or a class of people.

Look at it like this. Everyone has the right to use the roads for getting from one place to another. We can’t drive our cars across lawns and fields. The State, which is the people, have taken the land in common use and paved roads for convenience and safety in moving about. However, if someone would then attempt to use those roads which were provided by all, for the purpose of conducting business they would be profiting from something paid for, and maintained, by others. That is a privilege. I can set up a lemonade stand in my yard, but can’t just go to my neighbor’s yard and set one up. I have ‚ no right to use his yard without permission. That permission is a license. The same applies to using the roads. We have freedom of mobility. We cannot be denied the right to use what has been provided for all by requiring people to first apply for and be issued a license. You cannot license a right.

“Complete freedom of the highways is so old and well established a blessing that we have forgotten the days of the Robber Barons and toll roads, and yet, under an act like this, arbitrarily administered, the highways may be completely monopolized, if, through lack of interest, the people submit, then they may look to see the most sacred of their liberties taken from them one by one, by more or less rapid encroachment.” -Robertson vs. Department of Public Works, 180 Wash 133,147

“Personal liberty largely consists of the Right of locomotion — to go where and when one pleases — only so far restrained as the Rights of others may make it necessary for the welfare of all other citizens. The Right of the Citizen to travel upon the public highways and to transport his property thereon, by horsedrawn carriage, wagon, or automobile, is not a mere privilege which may be permitted or prohibited at will, but the common Right which he has under his Right to life, liberty, and the pursuit of happiness. Under this Constitutional guarantee one may, therefore, under normal conditions, travel at his inclination along the public highways or in public places, and while conducting himself in an orderly and decent manner, neither interfering with nor disturbing another’s Rights, he will be protected, not only in his person, but in his safe conduct.” [emphasis added] American Jurisprudence 1st. Constitutional Law, Sect.329, p 1135.

So, if privileges apply to a particular group or class of people, who are they? Well, first we have to look at just “who” can be regulated and what they are doing. This will fall under the state’s “police power“. What is the “police power”? It is the inherent power of the State to legislate for the healty, safety, welfare, and morals of its citizens.‚  It is primarily limited to businesses or professional occupations. Keep this in mind because I’ll refer back to it later.

There are essentially two types of “persons”, residents and non-residents. We will first look at residents. A resident is defined thusly:

(625 ILCS 5/1-173) (from Ch. 95 1/2, par. 1-173)
Sec. 1-173. Resident.
(a) Every natural person who resides in this state shall be deemed a resident of this State.
(b) In the case of a firm, copartnership or association, if the principal place of business of such firm, copartnership or association is located in the State of Illinois, then such firm, copartnership or association shall be deemed a resident of the State of Illinois.
(c) In the case of a corporation, if the corporation was incorporated under the laws of the State of Illinois or if the principal place of business of such corporation is in the State of Illinois, then such corporation shall be deemed a resident of the State of Illinois.
(Source: P.A. 76-1586.)

There are a couple of things to note. The use of the term “natural person” and “this State”. We know that corporations are considered persons under the law, and we assume that persons always includes people, but such is not the case. You must look at the object of the legislation and then at the definitions. A “person” may, in some cases depending on the legislation, mean only corporations. Likewise, “natural persons” do not mean only people. By the same token, “person” does not necessarily mean people. The Vehicle Code defines “person” as:

(625 ILCS 5/1-159) (from Ch. 95 1/2, par. 1-159)
Sec. 1-159. Person.
Every natural person, firm, copartnership, association or corporation. (EG) (EU)
(Source: P.A. 76-1586.)

So, regarding “persons”, we have reference to natural persons, and corporate entities. Seeing as how they are hanging their hat on “natural persons”, we need to investigate how that is used throughout other laws.

Here are a couple of examples:

Under former clause 5 of ‚¶1 of former chapter 1 (now this paragraph) providing that the word “person” or “persons,” as well as all words referring to or importing persons, might extend and be applied to bodies politic and corporate as well as individuals, a dram shop license might be issued to a corporation as well as an individual. People, on Inf. of Healy v. Heidelberg Garden Co., 1908, 84 N.E. 230, 233 Ill. 290. Intoxicating Liquors

The word “parties” in the Venue Act (see, now, ch. 110, ‚¶501 et seq.) refers to and imports persons and includes corporations. Commercial Ins. Co. v. Mehlman, 1868, 48 Ill. 313, 95 Am.Dec. 543.

Corporations are included in the word “person” in the attachment law. Mineral Point R. Co. v. Keep, 1859, 22 Ill. 9, 74 Am.Dec. 124.

The term “natural person” or “natural persons,” used in the Banking Act (ch. 16 1/2 , ‚¶101 et seq.), extends to and applies to “bodies politic” and “corporate.” Fidelity Inv. Assn. v. Emmerson, 1924, 235 Ill.App. 518, reversed on other grounds 318 Ill. 548, 149 N.E. 530.

The word “company” in an act relating to the right to operate a street railway could not, under ‚¶1 of former chapter 1 (now this paragraph) be construed to include a natural person. Goddard v. Chicago & N.W. Ry. Co., 1903, 104 Ill.App. 526, affirmed 202 Ill. 362, 66 N.E. 1066.

The word “person” authorizes a recovery upon the complaint of a body politic or corporate. Durbin v. People, 1894, 54 Ill.App. 101.

A city was a “person” within Workmen’s Compensation Act, ‚§ 3 (ch. 48, ‚¶136, repealed), in view of ‚¶1 of former chapter 1 (now this paragraph). Smith v. City of Hamilton, 1924, 231 Ill.App. 482.

So, based on the foregoing, we cannot assume that a “natural person” necessarily means people in-general. It is reasonable to conclude that a natural person is a human being, but a human being acting as a representative for a corporation or having a duty as an officer of a corporation. Since you cannot impose a duty or obligation upon a incorporeal entity, like a corporation, you can upon an individual who is charged with executing the by-laws of the corpration. There must be a flesh-and-blood individual responsible for carrying forth the operations of the corporation.

If “persons” and “natural persons” may mean people, cities, corporations, how do we determine who is bound by the law? Let’s look at the definition further. A resident is distinguished by two means, the “natural person” and the “un-natural person”, aka, corporation. This illustrates what I have just explained above. However, pay attention to the location of residency. Natural persons reside in “this State” and corporations reside in the State of Illinois.

Natural Persons – (a) Every natural person who resides in this state shall be deemed a resident of this State.

Corporations not incorporated in the State of Illinois – (b) In the case of a firm, copartnership or association, if the principal place of business of such firm, copartnership or association is located in the State of Illinois, then such firm, copartnership or association shall be deemed a resident of the State of Illinois.
Corporations Incorporated in the State of Illinois – (c) In the case of a corporation, if the corporation was incorporated under the laws of the State of Illinois or if the principal place of business of such corporation is in the State of Illinois, then such corporation shall be deemed a resident of the State of Illinois

There are two things to note. Notice how in (a), there are two spellings of “this state”, one being with a lower case (s) state, and the other with an upper case (S) State. This is no accident, and when read actually makes no apparent sense. Here are a few ways to possibly interpret that phrase:

(a) Every human being who resides in illinois shall be deemed to be a resident of Illinois

(a) Every human being having a duty or obligation as an officer or agent for a corporation who resides in illinois shall be deemed to be a resident of Illinois

(a) Every human being having a duty or obligation as an officer or agent for a corporation who resides in‚ this state shall be deemed to be a resident of Illinois

(a) Every human being‚ who resides in Illinois shall be deemed to be a resident of this State.

(a) Every human being who resides in this state shall be deemed to be a resident of Illinois

As you can see, it really makes no sense if “this state” and “this State” means the State of Illinois. So, what is “this (s)(S)tate”? In the case of natural persons, it is residency. In the case of corporations, it is their place of business or incorporation. If it applies to corporations, the phrase “State of Illinois” is used, and in the case of natural persons it is “this state”.

We must determine what exactly a “state”/”State” is. I will prove that there is a state, other than the State of Illinois, which is used for the Illinois Vehicle Code. The Illinois Statutes define “State” differently in certain statutes.

(5 ILCS 70/1.14) (from Ch. 1, par. 1015)
‚ Sec. 1.14. “State,” when applied to different parts of the United States, may be construed to include the District of Columbia and the several territories, and the words “United States” may be construed to include the said district and territories. (EG) (EU) (RS)
(Source: Laws 1945, p. 1717.)

1. District of Columbia – The District of Columbia is a “state” within the proviso of ch. 110 1/2 , ‚¶6 (see, now, ch. 111, ‚¶5506), permitting certified public accountants holding certificates issued under laws of another “state” to practice in Illinois. Gore v. National Ass’n of Certified Public Accountants, 1924, 231 Ill.App. 38., 5 I.L.C.S. 70/1.14, IL ST CH 5 ‚§ 70/1.14

There are parts of the Illinois Compiled Statutes which have gone to lenghts to actually define “State”, or “this State”.

AIR TRANSPORTATION
(620 ILCS 5/) Illinois Aeronautics Act.
(620 ILCS 5/7) (from Ch. 15 1/2, par. 22.7)
http://marcmkkoy.com/mark/ilcs/ilcs3d5c4.html?ActID=1803&ChapterID=48
Sec. 7. “State” or “this State” means the State of Illinois; and “Department” means the Division of Aeronautics of the Department of Transportation of this State. (PM)
(Source: P.A. 81-840.)

We can infer from the use of state in other statutes that there is a difference between Illinois, and parts of the Unites States; meaning that things other than the several 50 states can be States. So far, we have determined that persons can be people or legal entities. We have also determined that, as far as the Vehicle Code is concerned, when referring to persons, the definition specifies “natural persons”, and that “natural persons” can be both people and legal enties. As an example, let’s look at another part of the Transporation Statutes, in this case, Roads and Bridges, and see how they define a “person”:

ROADS AND BRIDGES
(605 ILCS 5/) Illinois Highway Code.
(605 ILCS 5/2-216) (from Ch. 121, par. 2-216)
http://marcmkkoy.com/mark/ilcs/ilcs41783.html?DocName=060500050HArt.+2+Div.+2&ActID=1745&ChapterID=45&SeqStart=1100000&SeqEnd=3200000
Sec. 2-216. Person-Any person, firm, partnership, association, public or private corporation, organization or business or charitable trust. (EG) (EU)
(Source: Laws 1959, p. 196.)

I fail to find the term “natural person” used for the Illinois Highway Code. So, to what does that code apply? Does it apply to “this State”, or “the State of Illinois”?

(605 ILCS 5/1-103) (from Ch. 121, par. 1-103)
Sec. 1-103.
This Code applies to all public highways in the State of Illinois, except highways under the exclusive jurisdiction (1) of any department, board, commission or agency of this State other than the Department of Transportation or (2) of any municipal corporation other than a city, village or incorporated town.
(Source: P.A. 77-173.)

 

ARE YOU LIVING IN A state OF CONFUSION OVER THE state OF THE state OF this State?

Now, this is telling in that the Code applies to all public highways in the State of Illinois, except highways under the exclusive jurisdiction of another agency of “this State” other than the Department of Transporation or of a municipal corporation other than a city, village, or incorporated town. It can also be worded to say, “This Code applies to all public highways in the State of Illinois except areas under the exclusive jurisdiction of something other than the Department of Transportation or a municipal corporation that is not a city, village, or town.” So, as far as the Illinois Highway Code is concerned, there are public highways in the State of Ilinois, and those under the exclusive jurisdiction of “this State”, or a municipal corporation other than a city, village, or incorporated town, which can include a municipal corporation of the Unites States which is also called a State, such as:

625 ILCS 5/1-195) (from Ch. 95 1/2, par. 1-195)
Sec. 1-195. State.
A state, territory or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico or a province of the Dominion of Canada.
(Source: P.A. 76-1586

To complicate matters further, but to illustrate a dual and overlapping jurisdiction of state and federal authority, we will look at Illinois in another light, that being, as a federal territory:

DIVISION 1. SYSTEMS OF HIGHWAYS
http://marcmkkoy.com/mark/ilcs/ilcs4367d.html?DocName=060500050HArt.+2&ActID=1745&ChapterID=45&SeqStart=500000&SeqEnd=3200000
(605 ILCS 5/2-202) (from Ch. 121, par. 2-202)
Sec. 2-202. Highway-any public way for vehicular travel which has been laid out in pursuance of any law of this State, or of the Territory of Illinois, or which has been established by dedication, or used by the public as a highway for 15 years, or which has been or may be laid out and connect a subdivision or platted land with a public highway and which has been dedicated for the use of the owners of the land included in the subdivision or platted land where there has been an acceptance and use under such dedication by such owners, and which has not been vacated in pursuance of law. The term “highway” includes rights of way, bridges, drainage structures, signs, guard rails, protective structures and all other structures and appurtenances necessary or convenient for vehicular traffic. A highway in a rural area may be called a “road”, while a highway in a municipal area may be called a “street”.
(Source: Laws 1959, p. 196.)

Now, notice how there is a “Territory of Illinois” distinguished from “this State”. Illinois ceased being a territory with the Ordinance of 1818 when it was allowed statehood. However, the federal government has exclusive jurisdiction over its territories. Notice the “Source” date on the statute. It is 1959. There was no Illinois Territory in 1959, or was there? What exactly do they mean by Territory of Illinois? Let’s look at the definition of a “territory”:

http://legal-dictionary.thefreedictionary.com/territory
TERRITORY. Apart of a country, separated from the rest, and subject to a particular jurisdiction. The word is derived from terreo, and is so called because the magistrate within his jurisdiction has the power of inspiring a salutary fear. Dictum cat ab eo quod magistratus intra fines ejus terrendi jus habet. Henrion de Pansy, Auth. Judiciare, 98. In speaking of the ecclesiastical jurisdictions, Francis Duaren observes, that the ecclesiastics are said not to have territory, nor the power of arrest or removal, and are not unlike the Roman magistrates of whom Gellius says vocationem habebant non prehensionem. De Sacris Eccl. Minist. lib. 1, cap. 4. In the sense it is used in the constitution of the United States, it signifies a portion of the country subject to and belonging to the United States, which is not within the boundary of any of them.
2. The constitution of the United States, art. 4, s. 3, provides, that “the congress shall have power to dispose of, and make all needful rules and regulations respecting the territory or other property of the United States; and nothing in this constitution shall be construed, so as to preclude the claims of the United States or of any state.”
3. Congress possesses the power to erect territorial governments within the territory of the United States; the power of congress over such territory is exclusive and universal, and their legislation is subject to no control, unless in the case of ceded territory, as far as it may be affected by stipulations in the cessions, or by the ordinance of 1787, 3 Story’s L. U. S. 2073, under which any part of it has been settled. Story on the Const. Sec. 1322; Rawle on the Const: 237; 1 Kent’s Com. 243, 359; 1 Pet. S. C. Rep. 511, 542, 517.
4. The only organized territories of the United States are Oregon, Minnesota, New Mexico and Utah. Vide Courts of the United States.

This essentially says that a territory is separate from the rest of the country and subject to particular jurisdiction under the full control of Congress, including land ceded to the federal government and governed by stipulations. I posit, the stipulations are the accepting federal highway dollars for roads and other transportation uses, thereby subjecting the “highways” to the control of Congress, the area over which it legislates is referred to as, “this State”. I am speculating that when it comes to the drivers license, the State of Illinois does not have the right to license the use of roads under the jurisdiction of the United States, and any alleged violation for not possessing a license can be removed to federal court for lack of standing on the part of the state government.

Here is a sampling of how the federal monies are used over certain roads and the corresponding jurisdiction over those roads:

http://marcmkkoy.com/mark/ilcs/ilcs4c9b1.html?DocName=060500050HArt.+3&ActID=1745&ChapterID=45&SeqStart=3200000&SeqEnd=5200000
(605 ILCS 5/3-104.2) (from Ch. 121, par. 3-104.2)
Sec. 3-104.2. The Department, or the Department in cooperation with municipal corporate authorities or county authorities, is authorized to receive and expend, by agreement or otherwise, federal funds for the construction, reconstruction and improvement of public roads not on any Federal-aid system, being improved under the Federal Aid Road Act.
Any Federal-aid project as authorized in this Section may be undertaken jointly at the expense of the federal government and the State of Illinois, or jointly at the expense of the federal government, a municipality or municipalities, or a county or counties, or jointly at the expense of the federal government, the State of Illinois, a municipality or municipalities or a county or counties, or any of the above jointly with any other public or private entity or public utility.
The authority having jurisdiction over a public road not on any federal-aid system prior to its improvement as a federal-aid project shall continue to be responsible for maintenance, at its own expense.
For the purposes of this Section, “public road” means any road under the jurisdiction of and maintained by a public authority and open to public travel and which is not on a federal-aid system.
(Source: P.A. 84-298.) – (Notice how the term “State of Illinois” is used instead of “this State”)

I apologize if I have deviated from my original intent, but I feel that foundation is important in supporting my analysis. All of this will come together to help you realize that the drivers license laws, although initially under the control of the States as a valid exercise of their police power in licensing and regulating drivers (chaffeurs) who accept compensation for carrying on a business, has now, through federal encroachment, become a plenary object of congress and an agreement between the States and Federal Government to establish a murky jurisdiction. Remember, the Federal Government has no authority within the boundaries of a State without that sovereignty being waived or ceded to the Federal Government, and upon doing so, thereby creates an area of concurrent jurisdiction where a federal State is found within the boundaries of one of the several States. From this, grew the National Driver Register, mandatory seat-belt laws, sobriety checkpoints, and more.

I believe it can be further speculated, that the Governor of the State of Illinois violates his oath of office by acting as an ambassador/administrator for the Federal Government in binding the people to federal regulations without clear constitutional authority or mandate. The nail in the coffin is the Illinois Highway Safety Law. I will reference the law, the Governor’s role, and a telling phraseology of what “this State” is in relation to establishing a federal territory in the State of Illinois for the purpose of receiving federal highway funds, which then provide the nexus for federal regulations imposed upon the states.

(625 ILCS 5/Ch. 17 heading)
CHAPTER 17. ILLINOIS HIGHWAY SAFETY LAW
http://marcmkkoy.com/mark/ilcs/ilcs43c49.html?DocName=062500050HCh.+17&ActID=1815&ChapterID=49&SeqStart=153100000&SeqEnd=153300000
(625 ILCS 5/17-101) (from Ch. 95 1/2, par. 17-101)
Sec. 17-101. Powers and duties of governor. The Governor, in addition to other duties and responsibilities conferred upon him by the constitution and laws of this State is empowered to contract and to do all other things necessary in behalf of this State to secure the full benefits available to this State under the Federal Highway Safety Act of 1966, as amended, and in so doing, to cooperate with Federal and State agencies, agencies private and public, interested organizations, and with individuals, to effectuate the purposes of that enactment, and any and all subsequent amendments thereto. The Governor is the official of this State having the ultimate responsibility for dealing with the Federal Government with respect to programs and activities pursuant to the National Highway Safety Act of 1966 and any amendments thereto. To that end he shall coordinate the activities of the Secretary of State and the State Board of Education and of any and all departments and agencies of this State and its subdivisions, relating thereto.
(Source: P.A. 81-1508.)

‚ Let’s analyze this statute line-by-line.

1. The Governor, in addition to other duties and responsibilities conferred upon him by the constitution and laws of this State – The duties and responsibilities of the Governor of Illinois are conferred only by the Constitution of Illinois. The laws do not confer duties and responsibilities. His office is a Constitutional office and the duties and responsibilities are found in the Constitution of Illinois. I would argue that this statute is unconstitutional. The question is, what, exactly, are the duties and responsibilities conferred upon the Governor by “the laws of this State”, which is a federal territory or federal municipal corporation under the jurisdiction imposed by the Federal Highway Safety Act of 1966.

2. The Governor is the official of this State having the ultimate responsibility for dealing with the Federal Government with respect to programs and activities pursuant to the National Highway Safety Act of 1966 and any amendments thereto. – This wording is very suspect, as how did the Governor become the “official of this State”, and where to the responsibilities for dealing with the Federal Government arise in the Illinois Constitution? Since the Governor is a creature of the Constitution, and his duties and obligations are Constitutinal in-nature, let’s look to the Constitution for any “offical of this State” designation or responsibility to the Federal Government:

Illinois Constitution
Article 5, SECTION 8. GOVERNOR‚”SUPREME EXECUTIVE POWER
http://www.ilga.gov/commission/lru/Ilconstitution.pdf
The Governor shall have the supreme executive power, and shall be responsible for the faithful execution of the laws.
This is the first of several sections setting forth the powers of the Governor. This section states the powers that are most general. The Illinois Supreme Court has commented that this provision does not empower the Governor to establish new legal requirements by executive order or otherwise; as to persons not under his jurisdiction, he may only execute and enforce existing law.
The Governor does have control over agencies under him through his power to remove subordinates and his authority (recognized under Article 13, section 2) to establish ethical standards for agencies under him. – I see no obligation to the Federal Government imposed by the Illinois Constitution.‚ I see no designation for “official of this State”, or any other such‚ designation.

 

SKELETONS IN THE LEGISLATIVE CLOSET – CHRONOLOGY OF LICENSING LAWS

‚ What I think we have established, or have othewise made a very strong argument for or raised serious questions to, is the object and intent of the Drivers License laws, the proper jurisdiction involved, and whether this is a State law or Federal Law.

‚ As I said, this may have began with a proper exercise of the police power of the State in legislating for the health, safety, welfare, and morals of its Citizens, but has become something more invasive and encroaching. The issue is not whether we agree with the laws, or whether they serve any compelling state interest or protect public safety, it is by what authority do these laws exist? I’m going to go back to some of the earliest motor vehicle legislation and quote verbatim from that legislation, showing that in the beginning, the only objects of regulation were those using motor vehicles in the pursuit of a pecuniary benefit.

Smith’s Illinois Revised Statutes – 1921
Page 1720
MOTOR VEHICLES
AN ACT in relation to motor vehicles and to repeal a certain act therein named. [Approved June 30, 1919]
Page 1725
228. Chauffers – Regulations – License – Fees, etc.]
‚§27. An application for a license to operate motor vehicles as a chauffer, who is hereby defined to mean any person operating a motor vehicle as a mechanic or employee, and who directly or indirectly receives pay or any compensation whatsoever

Page 1726
for any work or services in connection with the operation of a motor vehicle or the transportation of passengers or merchendise with a motor vehicle for hire or for pecuniary profit, shall be made by mail or othewise to the Secretary of State, or his duly authorized agent, upon blanks prepared under his authority….
(Last paragraph on left column of page)
No person shall operate or drive a motor vehicle as a chauffer upon a public highway of this State, unless such person shall have complied in all respects with the requirements of this section: Provided, however, that a non-resident chauffeur who has registered under the provisions of the law in force in the city, state, foreign country or province, territory or Federal district, of his residence, substantially equivalent to the provisions of this section shall be exempt from license hereunder, while temporarily sojouring within this State, only to the extent that under the laws of the city, state, foreign country or province, territory or Federal district of his residence like privileges are granted to persons duly licensed and registered as chauffeurs under the laws of this State, and who are residents of this State.
230. Chauffeur or operator must be licensed.]
‚§29. No person or corporation shall employ, as a chauffeur or operator of a motor vehicle, any person not specially licensed as aforesaid.

Smith-Hurd
Illinois Revised Statutes
With cross references
1923
Essentially the save verbiage.

Smith-Hurd
Illinois Revised Statutes
With cross references
1925
Essentially the save verbiage.

Cahill Illinois Revised Statutes
Keyed to Annotated Statutes
1927
Essentially the save verbiage.

Smith-Hurd
Illinois Revised Statutes
With cross references
1929
Essentially the save verbiage.

Illinois Revised Statutes
With cross references
1925
State Bar Association Edition
Chap. 95 1/2 section 33 Page 2125
32b. Licenses of chauffeurs for 1938.]
‚§26b. All the provisions of law in force prior to the passage of this amendatory Act relating to the licensing and regulation of chauffeurs shall remain in full force and effect with respect to all chaiffeurs licensed for the year 1938. The provisions of this amendatory Act relating to the licensing and regulation of chauffeurs shall not apply to chauffeurs so licensed for the year 1938. Added by act filed July 12, 1938. L.1938, First Sp.Sess., p.39.
S.H.A. 95 1/2 Section 32b; J.A. 85.032(2).
33. Chauffeurs – License – Application – Examination – Fee – Age – Form of license-school bus and vehicle of common carrier- Record in office of Secretary of State-Non-resident chauffeurs-Renewal of licenses.]
‚§27. An application for a license to operate a motor vehicle as a chauffeur, who is hereby defined to mean any person whose principal occupation is that of operating a motor vehicle as a mechanic or employee, or who directly or indirectly receives pay or any compensation whatsoever for any work or services in connection with the operation of a motor vehicle for the transportation of passengers or merchendise for hire, shall be made by mail or othewise to the Secretary of State, or his duly authorized agent, upon blanks prepared under his authority. Provided, however, that no person shall be held to be a chauffeur, and subject to the provisions hereof, who operates a motor vehicle incidentally to some other and principal occupation and where such motor vehicle is so perated solely in furtherance of such other and principal occupation and is not used for the transportation of passengers or merchendise for hire; and, provided, further, that no person shall b eheld to be a chauffeur and subject to the provisions hereof who operates a motor vehicle in the service of the Army, Navy, or Marine Corps of the United States or who operates a road machine, farm tractor or implement of husbandry temporarily drawn, moved, or propelled on a highway; and, provided, further, that any garage which repairs or services motor vehicles and operates a service car shall have at least one licensed chauffeur who insofar as it is possible, shall take care of all testing and outside service work.

Chap. 95 1/2 section 33 Page 2126
34a. License as chauffeur or operator required – Exemptions.]
‚§28a. On and after May 1, 1939 in the case of operators and on and after January 1, 1939 in the case of chauffeurs, no person except those herinafter expressly exempted, shall drive any motor vehicle upon a highway in this State, unless such person has a valid license as an operator or chauffeur under the provisions of this Act, an operator being hereby defined to mean any person, other than a chauffeur, who is in actual physical control of a motor vechicle upon a highway. Any person holding a valid chauffeur’s license hereunder need not procure an operator’s license. Provided, however, that the following persons are exempt from the requirements of this section:
1. Any person while operating a motor vehicle in the service of the Army, Navy, or Marine Corps of the United States;
2. Any person while driving or operating a road machine, farm tractor or implement of husbandry temporarily drawn, moved, or propelled on a highway;
3. A non-resident of this State who is at least fifteen years of age and who has in his immediate possession a valid operator’s license issued to him in his home State or Country, may operate a motor vehicle in this State only as an operator;
4. A non-resident who is at least eighteen years of age and who has in his immediate possesion a valid chauffeur’s license issued to him in his State or Country may operate a motor vehicle in this State either as an operator or chauffeur except that any such person must be licensed as a chauffeur hereunder before accepting employment as a chauffeur from a resident of this State;
5. Any non-resident who is at least fifteen years of age, whose home State or Country does not require the licensing of operators, while operating a motor vehicle as an operator only, for a period of not more than 90 days in any calendar year, if in the home State or Country of such non-resident.
The provisions of this section granting exemptions to non-residents shall be operative only when under the laws of this State, foreign country or province, territory or federal district of such non-resident, like exemptions and privileges are granted to licensed resident operators and chauffeurs of this State. Added by act filed July 12, 1938. L.1938, First Sp. Sess., p.39

This is where “Operators” came to be and to require licenses. This is the beginning of the “drivers license”.

Given the foregoing, let’s look at the current law and see just “who” is required to have a driver’s license:

(625 ILCS 5/6-101) (from Ch. 95 1/2, par. 6-101)
Sec. 6-101. Drivers must have licenses or permits.
(a) No person, except those expressly exempted by Section 6-102, shall drive any motor vehicle upon a highway in this State unless such person has a valid license or permit, or a restricted driving permit, issued under the provisions of this Act.
(b) No person shall drive a motor vehicle unless he holds a valid license or permit, or a restricted driving permit issued under the provisions of Section 6-205, 6-206, or 6-113 of this Act. Any person to whom a license is issued under the provisions of this Act must surrender to the Secretary of State all valid licenses or permits. No drivers license or instruction permit shall be issued to any person who holds a valid Foreign State license, identification card, or permit unless such person first surrenders to the Secretary of State any such valid Foreign State license, identification card, or permit.
(b-5) Any person who commits a violation of subsection (a) or (b) of this Section is guilty of a Class A misdemeanor, if at the time of the violation the person’s driver’s license or permit was cancelled under clause (a)9 of Section 6-201 of this Code.

Who, is exempt?

http://marcmkkoy.com/mark/ilcs/ilcs47662.html?DocName=062500050HCh.+6&ActID=1815&ChapterID=49&SeqStart=72100000&SeqEnd=90800000
(625 ILCS 5/6-102) (from Ch. 95 1/2, par. 6-102)
Sec. 6-102. What persons are exempt. The following persons are exempt from the requirements of Section 6-101 and are not required to have an Illinois drivers license or permit if one or more of the following qualifying exemptions are met and apply:
1. Any employee of the United States Government or any member of the Armed Forces of the United States, while operating a motor vehicle owned by or leased to the United States Government and being operated on official business need not be licensed;
2. A nonresident who has in his immediate possession a valid license issued to him in his home state or country may operate a motor vehicle for which he is licensed for the period during which he is in this State;
3. A nonresident and his spouse and children living with him who is a student at a college or university in Illinois who have a valid license issued by their home State.
4. A person operating a road machine temporarily upon a highway or operating a farm tractor between the home farm buildings and any adjacent or nearby farm land for the exclusive purpose of conducting farm operations need not be licensed as a driver.
5. A resident of this State who has been serving as a member of the Armed Forces of the United States outside the Continental limits of the United States, for a period of 90 days following his return to the continental limits of the United States.
6. A nonresident on active duty in the Armed Forces of the United States who has a valid license issued by his home state and such nonresident’s spouse, and dependent children and living with parents, who have a valid license issued by their home state.
7. A nonresident who becomes a resident of this State, may for a period of the first 90 days of residence in Illinois operate any motor vehicle which he was qualified or licensed to drive by his home state or country so long as he has in his possession, a valid and current license issued to him by his home state or country. Upon expiration of such 90 day period, such new resident must comply with the provisions of this Act and apply for an Illinois license or permit.
8. An engineer, conductor, brakeman, or any other member of the crew of a locomotive or train being operated upon rails, including operation on a railroad crossing over a public street, road or highway. Such person is not required to display a driver’s license to any law enforcement officer in connection with the operation of a locomotive or train within this State.
The provisions of this Section granting exemption to any nonresident shall be operative to the same extent that the laws of the State or country of such nonresident grant like exemption to residents of this State.
The Secretary of State may implement the exemption provisions of this Section by inclusion thereof in a reciprocity agreement, arrangement or declaration issued pursuant to this Act.
(Source: P.A. 96-607, eff. 8-24-09.)

The power to license rests with the legislature, and their exercise of the police power. I believe the State of Illinois exceeds its police power authority in the current drivers license laws because it does not serve to protect the citizens from a threat to the health, safety, welfare, or morals; and is equally violative of the equal protection clause of the 14th Amendment in excluding some from complying with the licensing requirements. There can be no exclusion for some where the compelling state interest does not differentiate between classes of individuals in carrying forth the provisions of the law. In the case of Mahony v. Township of Hampton, 539 Pa. 193, 651 A.2d 525 (1994), Mahony argued that the government could not be exempt from one ordinance and he be obligated to it. By those under number 1. above being exempt with no rational basis in driver competency, I believe it is violative of the equal protection clause and an invalid exercise of the police power when causing some to be licensed and not others. In-fact, it can be said that the state fails in exercising its police powers because people now can renew their licenses without having to take a competency road test or exam every time their license expires. Theoretically, driver competency can diminish over this time and the state, thereby, places drivers “legally” upon the road who pose an articulable danger to other drivers.

…..More to come……….

 

TABLE OF AUTHORITIES/DEFINITIONS/CASES CITED

Illinois Vehicle Code Definitions:

(625 ILCS 5/1-154.1) (from Ch. 95 1/2, par. 1-154.1)
Sec. 1-154.1. Operate. To ride in or on, other than as a passenger, use or control in any manner the operation of any device or vehicle whether motorized or propelled by human power.
(Source: P.A. 85-830.)

(625 ILCS 5/1-154.2) (from Ch. 95 1/2, par. 1-154.2)
Sec. 1-154.2. Operator. Every person who operates or is in actual physical control of any device or vehicle whether motorized or propelled by human power.
(Source: P.A. 85-830.)

(625 ILCS 5/1-115.8)
Sec. 1-115.8. Drive. To drive, operate, or be in physical control of a motor vehicle.
(Source: P.A. 90-89, eff. 1-1-98.)

(625 ILCS 5/1-116) (from Ch. 95 1/2, par. 1-116)
Sec. 1-116. Driver.
Every person who drives or is in actual physical control of a vehicle.
(Source: P.A. 76-1586.)

(625 ILCS 5/1-209.5)
Sec. 1-209.5. Transportation. The actual movement of property or passengers by motor vehicle, together with loading, unloading, and any other accessorial or ancillary service provided by the carrier in connection with movement by motor vehicle.
(Source: P.A. 90-89, eff. 1-1-98.)

(625 ILCS 5/1-133) (from Ch. 95 1/2, par. 1-133)
Sec. 1-133. Interstate or Interstate Commerce.
Transportation between 2 or more States or transportation originating in one State and passing into or through other States for delivery in another State, and which is not intrastate.
(Source: P.A. 76-1586.)

(625 ILCS 5/1-133.05)
Sec. 1-133.05. Interstate carrier of property. Any person who is engaged in the transportation of property only by motor vehicle in whole or in part in interstate or foreign commerce in this State either with or without authority issued from the Interstate Commerce Commission.
(Source: P.A. 90-89, eff. 1-1-98.)

(625 ILCS 5/1-133.1) (from Ch. 95 1/2, par. 1-133.1)
Sec. 1-133.1. Interstate highway. Any highway which is now, or shall hereafter be, a part of the national system of interstate and defense highways within this State.
(Source: P.A. 85-830.)

(625 ILCS 5/1-134) (from Ch. 95 1/2, par. 1-134)
Sec. 1-134. Intrastate or Intrastate Commerce.
Transportation originating at any point or place within this State and destined to any other point or place within this State, irrespective of the route, highway or highways traversed, and including transportation which passes into or through another State before delivery is made within this State, and including any act of transportation which includes or completes a pickup within Illinois for delivery within Illinois.
(Source: P.A. 76-1586.)

(625 ILCS 5/1-145) (from Ch. 95 1/2, par. 1-145)
Sec. 1-145. Motor carrier.
An operator of For-Hire vehicles pursuant to the Illinois Motor Carrier of Property Law.

(625 ILCS 5/1-122.5) (from Ch. 95 1/2, par. 1-124)
Sec. 1-122.5. For-hire. The operation of a vehicle for compensation and subject to federal regulation by the Interstate Commerce Commission or to state regulation by the Illinois Commerce Commission and those vehicles governed by Chapters 8 and 9 under this Code and regulated by the Secretary of State.
(Source: P.A. 90-89, eff. 1-1-98.)

(625 ILCS 5/1-153) (from Ch. 95 1/2, par. 1-153)
Sec. 1-153. Not-For-Hire.
Operation of a commercial vehicle in furtherance of any commercial or industrial enterprise but not For-Hire.
(Source: P.A. 76-1586.)

(625 ILCS 5/8-101) (from Ch. 95 1/2, par. 8-101)
Sec. 8-101. Proof of financial responsibility – Persons who operate motor vehicles in transportation of passengers for hire.
(a) It is unlawful for any person, firm or corporation to operate any motor vehicle along or upon any public street or highway in any incorporated city, town or village in this State for the carriage of passengers for hire, accepting and discharging all such persons as may offer themselves for transportation unless such person, firm or corporation has given, and there is in full force and effect and on file with the Secretary of State of Illinois, proof of financial responsibility provided in this Act. – (Source: P.A. 76-1586.)

(625 ILCS 5/1-207) (from Ch. 95 1/2, par. 1-207)
Sec. 1-207. Traffic.
Pedestrians, ridden or herded animals, vehicles, streetcars and other conveyances either singly or together while using any highway for purposes of travel.
(Source: P.A. 76-1586.)

(625 ILCS 5/1-217) (from Ch. 95 1/2, par. 1-217)
Sec. 1-217. Vehicle. Every device, in, upon or by which any person or property is or may be transported or drawn upon a highway or requiring a certificate of title under Section 3-101(d) of this Code, except devices moved by human power, devices used exclusively upon stationary rails or tracks and snowmobiles as defined in the Snowmobile Registration and Safety Act.
For the purposes of this Code, unless otherwise prescribed, a device shall be considered to be a vehicle until such time it either comes within the definition of a junk vehicle, as defined under this Code, or a junking certificate is issued for it.
For this Code, vehicles are divided into 2 divisions:
First Division: Those motor vehicles which are designed for the carrying of not more than 10 persons.
Second Division: Those vehicles which are designed for carrying more than 10 persons, those designed or used for living quarters and those vehicles which are designed for pulling or carrying property, freight or cargo, those motor vehicles of the First Division remodelled for use and used as motor vehicles of the Second Division, and those motor vehicles of the First Division used and registered as school buses.
(Source: P.A. 92-812, eff. 8-21-02.)

(625 ILCS 5/1-146) (from Ch. 95 1/2, par. 1-146)
Sec. 1-146. Motor vehicle. Every vehicle which is self-propelled and every vehicle which is propelled by electric power obtained from overhead trolley wires, but not operated upon rails, except for vehicles moved solely by human power, motorized wheelchairs, low-speed electric bicycles, and low-speed gas bicycles. For this Act, motor vehicles are divided into two divisions:
First Division: Those motor vehicles which are designed for the carrying of not more than 10 persons.
Second Division: Those motor vehicles which are designed for carrying more than 10 persons, those motor vehicles designed or used for living quarters, those motor vehicles which are designed for pulling or carrying freight, cargo or implements of husbandry, and those motor vehicles of the First Division remodelled for use and used as motor vehicles of the Second Division.
(Source: P.A. 96-125, eff. 1-1-10.)

(625 ILCS 5/1-157) (from Ch. 95 1/2, par. 1-157)
Sec. 1-157. Passenger car.
A motor vehicle of the First Division including a multipurpose passenger vehicle, that is designed for carrying not more than 10 persons.
(Source: P.A. 78-343.)

(625 ILCS 5/6-101) (from Ch. 95 1/2, par. 6-101)
Sec. 6-101. Drivers must have licenses or permits.
(a) No person, except those expressly exempted by Section 6-102, shall drive any motor vehicle upon a highway in this State unless such person has a valid license or permit, or a restricted driving permit, issued under the provisions of this Act.
(b) No person shall drive a motor vehicle unless he holds a valid license or permit, or a restricted driving permit issued under the provisions of Section 6-205, 6-206, or 6-113 of this Act. Any person to whom a license is issued under the provisions of this Act must surrender to the Secretary of State all valid licenses or permits. No drivers license or instruction permit shall be issued to any person who holds a valid Foreign State license, identification card, or permit unless such person first surrenders to the Secretary of State any such valid Foreign State license, identification card, or permit.
(b-5) Any person who commits a violation of subsection (a) or (b) of this Section is guilty of a Class A misdemeanor, if at the time of the violation the person’s driver’s license or permit was cancelled under clause (a)9 of Section 6-201 of this Code.

(625 ILCS 5/6-112) (from Ch. 95 1/2, par. 6-112)
Sec. 6-112. License and Permits to be carried and exhibited on demand. Every licensee or permittee shall have his drivers license or permit in his immediate possession at all times when operating a motor vehicle and, for the purpose of indicating compliance with this requirement, shall display such license or permit if it is in his possession upon demand made, when in uniform or displaying a badge or other sign of authority, by a member of the State Police, a sheriff or other police officer or designated agent of the Secretary of State. However, no person charged with violating this Section shall be convicted if he produces in court satisfactory evidence that a drivers license was theretofor issued to him and was valid at the time of his arrest.
For the purposes of this Section, “display” means the manual surrender of his license certificate into the hands of the demanding officer for his inspection thereof.
(Source: P.A. 76-1749.)

(625 ILCS 5/1-138) (from Ch. 95 1/2, par. 1-138)
Sec. 1-138. License to drive.
Any driver’s license or any other license or permit to operate a motor vehicle issued under the laws of this State including:
1. Any temporary license or instruction permit;
2. The privilege of any person to drive a motor vehicle whether or not such person holds a valid license or permit.
3. Any nonresident’s driving privilege as defined herein.
(Source: P.A. 76-1586.)

(625 ILCS 5/1-138.1) (from Ch. 95 1/2, par. 1-138.1)
Sec. 1-138.1. Licensee. A person licensed or required to be licensed under Sections 5-101, 5-102, 5-201 and 5-301 of this Code.
(Source: P.A. 83-1473.)

(625 ILCS 5/5-101) (from Ch. 95 1/2, par. 5-101)
Sec. 5-101. New vehicle dealers must be licensed.
(625 ILCS 5/5-102) (from Ch. 95 1/2, par. 5-102)
Sec. 5-102. Used vehicle dealers must be licensed.
(625 ILCS 5/5-201) (from Ch. 95 1/2, par. 5-201)
Sec. 5-201. Transporters must apply for in-transit plates.
(625 ILCS 5/5-301) (from Ch. 95 1/2, par. 5-301)
Sec. 5-301. Automotive parts recyclers, scrap processors, repairers and rebuilders must be licensed.

(625 ILCS 5/1-110) (from Ch. 95 1/2, par. 1-110)
Sec. 1-110. Cancellation of driver’s license.
The annulment or termination by formal action of the Secretary of a person’s driver’s license because of some error or defect in the license or because the licensee is no longer entitled to such license, but, with the exception of Sections 6-107, 6-108 and 6-201, the cancellation of a license is without prejudice and application for a new license may be made at any time after such cancellation.
(Source: P.A. 86-1450.)
(625 ILCS 5/6-107) (from Ch. 95 1/2, par. 6-107)
Sec. 6-107. Graduated license.
(625 ILCS 5/6-108) (from Ch. 95 1/2, par. 6-108)
Sec. 6-108. Cancellation of license issued to minor.
(625 ILCS 5/6-201)
(Text of Section from P.A. 97-208)
Sec. 6-201. Authority to cancel licenses and permits.

ARTICLE II. CANCELLATION, SUSPENSION, OR
REVOCATION OF LICENSES AND PERMITS

(625 ILCS 5/6-201)
(Text of Section from P.A. 97-208)
Sec. 6-201. Authority to cancel licenses and permits.
(a) The Secretary of State is authorized to cancel any license or permit upon determining that the holder thereof:
(SEE FULL CITATION)

(625 ILCS 5/6-202) (from Ch. 95 1/2, par. 6-202)
Sec. 6-202. Non-residents and Unlicensed Persons-Revocation and Suspension-Reporting Convictions.
(a) The privilege of driving a motor vehicle on highways of this State given to a nonresident hereunder and the privilege which an unlicensed person might have to obtain a license under this Act shall be subject to suspension or revocation by the Secretary of State in like manner and for like cause as a drivers license issued hereunder may be suspended or revoked.
(b) The Secretary of State is authorized, upon receiving a report of the conviction in this State of a nonresident driver of a motor vehicle of any offense under the laws of this State relating to operation, custody or ownership of motor vehicles, to forward a copy or abstract of such report to the motor vehicle administrator of the State wherein the person so convicted is a resident.
(c) (Blank.)
(d) This section is subject to the provisions of the Driver License Compact.
(Source: P.A. 96-962, eff. 7-2-10.)

(625 ILCS 5/6-206)
(Text of Section from P.A. 96-1551)
Sec. 6-206. Discretionary authority to suspend or revoke license or permit; Right to a hearing.
(a) The Secretary of State is authorized to suspend or revoke the driving privileges of any person without preliminary hearing upon a showing of the person’s records or other sufficient evidence that the person:
(SEE FULL CITATION)

(625 ILCS 5/6-209) (from Ch. 95 1/2, par. 6-209)
Sec. 6-209. Notice of Cancellation, Suspension or Revocation – Surrender and Return of License. The Secretary of State upon cancelling, suspending or revoking a license or permit shall immediately notify the holder thereof in writing and shall require that such license or permit shall be surrendered to and retained by the Secretary of State. However, upon payment of the reinstatement fee set out in subsection (g) of Section 6-118 at the end of any period of suspension of a license the licensee, if not ineligible for some other reason, shall be entitled to reinstatement of driving privileges and the return of his license if it has not then expired; or, in case it has expired, to apply for a new license.
(Source: P.A. 81-462.)

(625 ILCS 5/6-212) (from Ch. 95 1/2, par. 6-212)
Sec. 6-212. Court Review. The provisions of the Administrative Review Law, and all amendments and modifications thereof, and the rules adopted pursuant thereto, shall apply to and govern all proceedings for the judicial review of final administrative decisions of the Secretary of State hereunder.
(Source: P.A. 82-783.)

(625 ILCS 5/1-159) (from Ch. 95 1/2, par. 1-159)
Sec. 1-159. Person.
Every natural person, firm, copartnership, association or corporation.
(Source: P.A. 76-1586.)

(625 ILCS 5/1-173) (from Ch. 95 1/2, par. 1-173)
Sec. 1-173. Resident.
(a) Every natural person who resides in this state shall be deemed a resident of this State.
(b) In the case of a firm, copartnership or association, if the principal place of business of such firm, copartnership or association is located in the State of Illinois, then such firm, copartnership or association shall be deemed a resident of the State of Illinois.
(c) In the case of a corporation, if the corporation was incorporated under the laws of the State of Illinois or if the principal place of business of such corporation is in the State of Illinois, then such corporation shall be deemed a resident of the State of Illinois.
(Source: P.A. 76-1586.)

(625 ILCS 5/1-115.6)
Sec. 1-115.6. Domiciliary. A person who is domiciled.
(Source: P.A. 90-89, eff. 1-1-98.)

(625 ILCS 5/1-195) (from Ch. 95 1/2, par. 1-195)
Sec. 1-195. State.
A state, territory or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico or a province of the Dominion of Canada.
(Source: P.A. 76-1586.)

 

ILLINOIS COMPILED STATUTES – ANNOTATED

ILCS Ch. 625, Act 5, Ch. 1, References and Annotations
Illinois Annotated Compiled Statutes

ENACTMENT
<The Illinois Vehicle Code was enacted by P.A. 76-1586, effective July 1, 1970. The Code constitutes a consolidated recodification of various earlier laws and acts including the Illinois Motor Vehicle Law of 1957.>

INTRODUCTORY COMMENT–1969
The definitions are primarily based upon those found in the old Illinois Vehicle Law (I.V.L.) and the Uniform Act Regulating Traffic (U.A.R.T.).
There were a number of duplicated definitions in those two acts, and the following standards were followed in drafting this bill:
Where a definition related primarily to registration, the I.V.L. definition was used. Where it related to traffic, the U.A.R.T. definition was used.
Since the 1967 amendments to the Uniform Act Regulating Traffic conformed a substantial number of traffic definitions to those in the Illinois Vehicle Law, the vast majority of the definitions in this bill (HB 195) are based on the Illinois Vehicle Law. However, the following definitions relating to traffic matters were based on the U.A.R.T. definitions:
1-106. Bicycle.
1-131. Improved highway.
1-132. Intersection.
1-135. Lane-control signal.
1-154. Official traffic-control devices.
1-155. Owner.
1-156. Park or Parking.
1-157. Passenger car.
1-167. Railroad signs or signal.
1-175. Reversible lane.
1-177. Right-of-way.
1-200. Stop or stopping.
1-219. Yield Right-of-Way.
The 1968 amendatory bills relating to various definitions of “recreational vehicles”, were relied upon for the following definitions:
1-109. Camper.
1-127. House Car.
1-128. House trailer.
1-165. Private living coach.
1-169. Recreational vehicle.
The definition of “Motor vehicle” in Section 1-146 combines the I.V.L. and U.A.R.T. definitions as amended in 1967 so that it is clear that vehicles of the First Division are passenger cars, and all other vehicles are vehicles of the Second Division. Also, see Section 1457 defining “Passenger car”.
There is a deletion in Section 1-111 defining “Chauffeur”. The old law had an additional paragraph relating to an exemption for farm operations. New Section 6-102(5) provides for driving without a license, of road machinery or a farm tractor between the home farm and nearby farm lands. This deletion resulted from HB 1951 which revised the driver license law in 1967 effective January 1, 1969.

CROSS REFERENCES
Abandoned mobile homes, transportation over public streets, registration plates, see 210 ILCS 117/40.
Appropriation for administration of Illinois Vehicle Code, see 30 ILCS 105/8.3. Arson, damage to vehicles, see 720 ILCS 5/20-1.
Automobile junkyards, control and location, see 415 ILCS 95/1 et seq.
Bail, traffic offenses, see 725 ILCS 5/110-15; S. Ct. Rule 501 et seq.
Child passenger protection, see 625 ILCS 25/1 et seq.
Cigarettes, vehicle as constituting place of business within tax act, see 35 ILCS 130/1. Consumer Fraud Act, retail sales of motor vehicles, see 815 ILCS 505/2L. Crimes, vehicles used in commission, see 720 ILCS 5/36-1 et seq.
Crimes, vehicular hijacking, see 720 ILCS 5/18-3.
Criminal trespass to vehicles, see 720 ILCS 5/21-2.
Deadly weapons, concealing in vehicle, see 720 ILCS 5/24-1.
Department of Public Safety, enforcement of motor vehicle laws, see 20 ILCS 2610/16. Driver Education Act, see 105 ILCS 5/7-24 et seq.
Enforcement of motor vehicle law, power of Department of Public Safety, see 20 ILCS
2610/16.
Enforcement of motor vehicle laws by state highway police, see 20 ILCS 2610/16. Enforcement of motor vehicle ordinances by sheriff as supervisor of safety, see 55 ILCS
5/3-6036.
Firearms, concealment in vehicle as unlawful use, see 720 ILCS 5/24-1.
Garbage hauling vehicles, license, see 55 ILCS 5/5-8002.
Group vehicle insurance, policy requirements and mandatory requirements under code, see 215 ILCS 5/388a.
Highways,
Depositing matter likely to cause punctures, see 605 ILCS 5/9-121.
Protection in general, see 605 ILCS 5/9-102 et seq.
Indemnification for injuries caused by police officer, see 65 ILCS 5/1-4-6. Installment contracts, see 815 ILCS 375/1 et seq.
Insurance, domestic surplus line insurer, restrictions, see 215 ILCS 5/445a.
Insurance against hazards resulting from ownership, maintenance or use of automobile, see 215 ILCS 5/4, 5/378 et seq.
Livestock auction sales, record of motor vehicles delivering livestock, see 225 ILCS
640/7.
Loss and restoration of rights, application of law, see 730 ILCS 5/5-5-5.
Motor fuel tax, see 35 ILCS 505/1 et seq.
Motor Vehicle Retail Installment Sales Act, see 815 ILCS 375/1 et seq.
Motor vehicles, financing affiliates, licensing, see 625 ILCS 5/5-101.1.
Municipalities,
Code hearing departments, adjudicatory authority, see 65 ILCS 5/1-2.2-10.
Licensing and control of commercial vehicles, see 65 ILCS 5/11-41-1, 5/11-41-2. Regulation of vehicles, see 65 ILCS 5/11-40-1 et seq.
Taxes on vehicles, see 65 ILCS 5/8-11-4.
Wrecked motor vehicles, dealer regulation, see 65 ILCS 5/11-42-3.
Notary’s fee for filling out automobile applications, see 5 ILCS 312/3-104.
Public utilities motor vehicle lines, terminable permits, see 65 ILCS 5/11- 89-1 et seq. Punctures, deposit in highway of matter likely to cause, see 605 ILCS 5/9- 121.
Races and stunt events, permit in counties of 500,000 or less, see 55 ILCS 5/5-9001, 5/5-
9002.
Railroads, operation of motor vehicles for transportation of persons and property, see 610 ILCS 60/1.
Reckless homicide in driving of a motor vehicle, see 720 ILCS 5/9-3. Retail installment sales of motor vehicles, see 815 ILCS 375/1 et seq. Sale and distribution of driver’s information, see 625 ILCS 5/2-123.
Sales tax, see 35 ILCS 120/3.
Schools,
Driver education courses, see 105 ILCS 5/27-24.2.
Safety education, see 105 ILCS 5/27-17.
Serial numbers, altering or destroying manufacturer’s motor vehicle serial numbers, see 720 ILCS 335/1.
State highway police, enforcement of motor vehicle laws, see 20 ILCS 2610/16. State owned motor vehicles, identification, see 30 ILCS 610/0.01 et seq.
Traffic offense defined, bail, see S. Ct. Rule 501.
Uniform Foreign Money–Judgments, personal jurisdiction based on operation of motor vehicle, see 735 ILCS 5/12-622.
Use tax, see 35 ILCS 105/9.
Vehicular endangerment, see 720 ILCS 5/12-2.5. Vehicular invasion, see 720 ILCS 5/12-111
Warrant to search, see 725 ILCS 5/108-3.
Weighing, state highway police, see 20 1LCS 2610/16.
LAW REVIEW AND JOURNAL COMMENTARIES
Manufacturer’s duty to design automobiles to be safe. 55 Ill.B.J. 238 (1966).
State and local tax changes in 1965, 54 Ill.B.J. 112 (1965).
I.L.C.S. Ch. 625, ACT 5, Ch. 1, Refs & Annos, IL ST Ch. 625, ACT 5, Ch. 1, Refs &‚ Anos
Current through P.A. 94-1054, P.A. 94-1056 to P.A. 94-1068 of the 2006 Reg. Sess.
END OF DOCUMENT
625 ILCS 5/1-116
Formerly cited as IL ST CH 95 1/2 1-116
Chapter 625. Vehicles
Act 5. Illinois Vehicle Code (Refs & Annos)

Chapter 1. Title and Definitions (Refs & Annos)

5/1-116. Driver
⤠1-116. Driver. Every person who drives or is in actual physical control of a vehicle.
CREDIT(S)
P.A. 76-1586, ⤠1-116, eff. July 1, 1970.
FORMER REVISED STATUTES CITATION
Formerly Ill.Rev.Stat.1991, ch. 95 1/2 , 1-116.
SOURCE COMMENT
Section 1-112 of the Motor Vehicle Law of 1957 was taken verbatim from a similar definition contained in the Uniform Vehicle Code prepared by the National Committee on Uniform Traffic Laws and Ordinances. Subsection (c) of former section 8 of the Uniform Act Regulating Traffic (Ill.Rev.Stat.1955, ⤠106(c) ) was also identical.
HISTORICAL AND STATUTORY NOTES
Prior Laws:
Laws 1935, p. 1247, art. I, ⤠9.
Laws 1957, p. 2706, ⤠1-112.
I11.Rev.Stat.1967, ch. 95 1/2 , ‚§‚§ 1-112, 106.
CROSS REFERENCES
Driver education, see 105 ILCS 5/27-24 et seq. Driver training schools, see 625 ILCS 5/6-401 et seq.
RESEARCH REFERENCES Treatises and Practice Aids
IL Pattern Jury Instructions – Criminal 23.67, Definition of Transportation of Alcoholic Liquor in a Motor Vehicle-Driver.
625 I.L.C.S. 5/1-116, IL ST CH 625 ⤠5/1-116
Current through P.A. 94-1054, P.A. 94-1056 to P.A. 94-1068 of the 2006
Reg. Sess.
END OF DOCUMENT

625 ILCS 5/1-126
Formerly cited as IL ST CH 95 1/2 11-126
Chapter 625. Vehicles
Act 5. Illinois Vehicle Code (Refs & Annos) ‘Chapter 1. Title and Definitions (Refs & Annos) 5/1-126. Highway
⤠1-126. Highway.
The entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel or located on public school property.
CREDIT(S)

P.A. 76-1586, ⤠1-126, eff. July 1, 1970. Amended by P.A. 92-780, 5, eff. Aug. 6,2002.
FORMER REVISED STATUTES CITATION
Formerly Ill.Rev.Stat.1991, ch. 95 1/2 ,t1-126.
SOURCE COMMENT
The 1919 Motor Vehicle Law defined the term “Improved Highway” to include roads of concrete, brick, asphalt, macadam and gravel. The original Motor Vehicle Law enacted in 1907 defined the term “Public Highways” as follows:
“Public highways shall include any highway, county road, state road, public street, avenue, alley, park, parkway, driveway, or public place in any County, City, Village, Incorporated Town or Towns.”
The same definition was reenacted in Section 20 of the 1911 Motor Vehicle Law, with the exception of the word “park”, which was eliminated. The terms “street” or “highway” were again defined by the Illinois Legislature in the Uniform Act Regulating Traffic enacted in 1935. Streets or highways were defined:
“The entire width between property lines of every way or place of whatever nature when any part thereof is open to the use of the public as a matter of right, for purposes of vehicular traffic.” Ill.Rev.Stat.1955, ch. 95 1/2, ‚§ 109(a).
It is to be noted that the main difference between the definition of the term “highway” set out in the Uniform Traffic Act and that found in the Illinois Motor Vehicle Law lay in the addition of the phrase “as a matter of right”. Traffic safety officials preferred the definition in the Illinois Motor Vehicle Law since in their opinion traffic laws should apply if the public was using the highways regardless of whether or not they used the highway as a “matter of right”.
The term “highways” was again defined in 1953 by the Legislature in the Drivers License Act and such definition was identical with the definition found in the Motor Vehicle Law. The phrase “open to the use of the public as a matter of right” was interpreted by the Court in the case of Cihal v. Carver, 1948, 334 Ill.App. 234, 79 N.E.2d 82, to include any street or highway given to the public for public use and which every citizen had the right to use.
The Courts of Illinois stated, in the case of People v. Linde, 1930, 341 Ill. 269, 173 N.E. 361, 72 A.L.R. 997, that “the right to use public streets for purposes of travel is not absolute”. The Courts of Illinois have also stated that “no one has any inherent right to use the streets or highways as a place of business”. See People ex rel. Johns v. Thompson, 1930, 341 Ill. 166, 173 N.E. 137.
HISTORICAL AND STATUTORY NOTES
Prior Laws:
Laws 1919, p. 668, ‚§‚§ 1, 44.

Laws 1931, p. 780, ⤠1.

Laws 1935, p. 1247, Art. I, ⤠12.

Laws 1945, p. 1059, ⤠1.

Laws 1953, p. 476, ⤠6.

Laws 1953, p. 1578, ⤠1.

I11.Rev.Stat.1955, ch. 95 1/2, ‚§‚§ 1, 69, 73.6.

Laws 1957, p. 575, ⤠1.

Laws 1959, p. 177, ⤠1.

Laws 1959, p. 1772, ⤠1.

Laws 1959, p. 2209, ⤠1.

Laws 1961, p. 3627, ⤠1.

Laws 1963, p. 964, ⤠1.

Laws 1967, p. 3172, ⤠1.
I11.Rev.Stat.1969, ch. 95 1/2. ‚§‚§ 1-121, 109.
CROSS REFERENCES
Highways defined, size, weight and load, see 625 ILCS 5/15-100. Through highways, see 625 ILCS 5/1-205.
LIBRARY REFERENCES
Automobiles .13.
Westlaw Topic No. 48A. C.J.S. Motor Vehicles ⤠20.
RESEARCH REFERENCES
Encyclopedias
Illinois Law & Prac. Automobiles & Mtr. Vehicles ⤠3, Definitions.
Treatises and Practice Aids
IL Pattern Jury Instructions – Criminal 23.39, Definition of Driving While Driver’s License is Suspended or Revoked.
IL Pattern Jury Instructions – Criminal 23.65, Definition of Speeding.
IL Pattern Jury Instructions – Criminal 23.67, Definition of Transportation of Alcoholic Liquor in a Motor Vehicle-Driver.
IL Pattern Jury Instructions – Criminal 23.69, Definition of Possession of Alcoholic Liquor in a Motor Vehicle-Passenger.
IL Pattern Jury Instructions – Criminal 11.97B, Definition of Highway.
NOTES OF DECISIONS
Construction and application 2
Parking lots 5
Prior law 1
Public character of way 4 Regulation of use 3
1. Prior law
If public’s right to use drives, which were situated on state university campus, was not qualified or denied under proper grant of authority, roads were used by the public “as a matter of right,” within meaning of II 11-601 of former chapter 95 1/2 prohibiting speeding on a highway, defined in this paragraph as a way open to use of the public as a matter of right; in such case, speeding charge could properly be prosecuted under. People v. Tadd, App. 2 Dist.1973, 12 Ill.App.3d 391, 299 N.E.2d 8. Automobiles c.13
Driving of motor vehicle in privately owned parking lot by defendant, whose driver’s license had been suspended, did not constitute violation of Ill.Rev.Stat.1967, ch. 95 1/2,
6-303 (repealed. See ⤠6-303 former chapter 95 1/2 , prohibiting driving of motor vehicle on highway of state after suspension of license. People v. Kozak, App.1970, 130 Ill.App.2d 334, 264 N.E.2d 896. Automobiles c326
The phrase, “open to the use of the public as a matter of right,” in former ‚§ 109(a) of former chapter 95 1/2 defining street or highway, means street or highway given to public for public use and which every citizen has right to use. Cihal v. Carver, App.1948, 79 N.E.2d 82, 334 Ill.App. 234. Highways ‚£7,18; Municipal Corporations .c.–,703(1)
Former ‚§‚§ 98, 109, 111(a) and 187(a) of chapter 95 1/2 , having been a remedial statute relative to the parking of a motor vehicle, all general provisions, terms, phrases and expressions had to be liberally construed in order that the true intent and meaning of the Legislature could be fully carried out. Stine v. Union Elec. Co. of Ill., App.1940, 26 N.E.2d 433, 305 Ill.App. 37. Automobiles 12
2. Construction and application
Law relating to the movements of automobiles on a public highway, had regard to the traffic or use ordinarily made of such public highway, and contemplated the public use of every public highway for any lawful purpose. Fitzsimmons v. Snyder, 1913, 181 Ill.App. 70.
Chapter 11 of the Illinois Vehicle Code may not be enforced on privately maintained subdivision roads absent compliance with ⤠11-209.1, except that articles IV and V of the chapter may be enforced on private as well as public ways, as may other sections which specifically so provide. 1991 Op.Atty.Gen. No. 91-043.
3. Regulation of use
The State, in exercise of its police power, may regulate the use of its streets and highways in the public interest; thus, the State may empower one of its agencies, such as the board
of regents, to regulate the use of streets and roads located on a college campus in furtherance of particular needs and uses of the university; such regulation includes power to deny use of roads to the general public as a matter of right. People v. Tadd, App. 2 Dist.1973, 12 Ill.App.3d 391, 299 N.E.2d 8. Highways
No one has any inherent right to use streets or highways as a place of business. People ex rel. Johns v. Thompson, 1930, 173 N.E. 137, 341111. 166. Automobiles Municipal Corporations c669
4. Public character of way
Defendant who rode his motorcycle on streets located in village subdivision was riding on highways, as opposed to private roads, and thus, evidence was sufficient to support his conviction for operating motor vehicle on highway when his license was suspended; plat showed that streets in subdivision were dedicated to village, village expressly accepted the dedication, village’s role in ensuring maintenance of streets justified characterizing the streets as “publicly maintained,” and developer, in carrying out its contractual responsibility to maintain streets, acted under aegis of village and essentially performed public function. Village of Lake Villa v. Bransley, App. 2 Dist.2004, 284 Ill.Dec. 250, 348 IlLApp.3d 280, 809 N.E.2d 816. Automobiles c326
Even if maintenance was not physically undertaken by village employees or coordinated by department of the village government, streets which were located in subdivision in village were “publicly maintained” and, as such, constituted “highways” within meaning of statute defining “highway” as entire width between boundary lines of every way “publicly maintained” when any part thereof is open to use of public for purposes of vehicular travel and statute providing that any person who drives vehicle on “highway” when his license is suspended shall be guilty of a misdemeanor. Village of Lake Villa v. Bransley, App. 2 Dist.2004, 284 Ill.Dec. 250, 348 Ill.App.3d 280, 809 N.E.2d 816. Automobiles 326
Whether “street” or road is public highway may be proved by parol evidence. People v. Kyle, 1930, 173 N.E. 75, 341111. 31. Criminal Law c400(1)
A “public highway” includes public ways of every description which public have right to use for travel, such as city streets, footways, sidewalks, alleys, turnpikes, plank roads, and bridges. Manimina v. Alexander Auto Service Co., 1928, 164 N.E. 173, 333 Ill. 158.
Fact that a particular road is privately maintained does not necessarily make such a road a “private road”. 1975 Op.Atty.Gen. No. S-858.
5. Parking lots
Publicly maintained parking lot that was open to public use was public highway for purposes of summary driver’s license suspension statute, so that driver asleep in parking lot with his car engine running impliedly consented to blood alcohol test. People v. Culbertson, App. 2 Dist. 1994, 196 Ill.Dec. 554, 258 Ill.App.3d 294, 630 N.E.2d 489.
Automobiles 144.1(1.11)
Word “highway,” within this paragraph is broad enough to encompass publicly maintained parking lots. People v. Jensen, App. 1 Dist.1976, 37 Ill.App.3d 1010, 347 N.E.2d 371.
Defendant was driving on a “highway” and, therefore, was in violation of statutory proscription when he drove his vehicle in a parking lot of a forest preserve district while his driver’s license was under suspension. People v. Jensen, App. 1 Dist.1976, 37 Ill.App.3d 1010, 347 N.E.2d 371. Automobiles 4‚º.326
625 I.L.C.S. 5/1-126, IL ST CH 625 ⤠5/1-126
Current through P.A. 94-1054, P.A. 94-1056 to P.A. 94-1068 of the 2006 Reg. Sess.
END OF DOCUMENT

625 ILCS 5/1-173
Formerly cited as IL ST CH 95 1/2 1-173
West’s Smith-Hurd Illinois Compiled Statutes Annotated Currentness
Chapter 625. Vehicles
Act 5. Illinois Vehicle Code (Refs & Annos) ‘0-Chapter 1. Title and Definitions (Refs & Annos) 45/1-173. Resident
⤠1-173. Resident. (a) Every natural person who resides in this state shall be deemed a resident of this State.
(b) In the case of a firm, copartnership or association, if the principal place of business of such firm, copartnership or association is located in the State of Illinois, then such firm, copartnership or association shall be deemed a resident of the State of Illinois.
(c) In the case of a corporation, if the corporation was incorporated under the laws of the State of Illinois or if the principal place of business of such corporation is in the State of Illinois, then such corporation shall be deemed a resident of the State of Illinois.

CREDIT(S)
P.A. 76-1586, ⤠1-173, eff. July 1, 1970.
FORMER REVISED STATUTES CITATION
Formerly Ill.Rev.Stat.1991, ch. 95 1/2 , 1-173.
SOURCE COMMENT
This term was not defined in the 1919 Motor Vehicle Law nor was it defined in the Uniform Vehicle Code. The original 1907 Motor Vehicle Law provided an exemption for non-resident’s registration of their motor vehicles provided the owner thereof had complied with the law requiring the registration of motor vehicles in force in the State of his residence, and further provided that the registration number was conspicuously displayed on the motor vehicle. This exemption was continued in the 1911 Motor Vehicle Law and a “non-resident” was defined: “to mean a person residing in another State and temporarily sojourning within this State for a period of 60 days or less in any one year”. The exemption for non-residents was set out in Section 20 of the 1919 Motor Vehicle Law. The exemption was restricted however and “foreign corporations” owning or maintaining or operating places of business in Illinois and using motor vehicles or motor bicycles in connection with such places of business were required to register such motor vehicles or motor bicycles so used in connection with such places of business. Exemptions from registration for non-residents was further qualified by the addition of a requirement that “like exemptions and privileges” were granted to motor vehicles and motor bicycles duly registered under the laws of and owned by residents of Illinois by the State of residence of such non-resident. The definition of “non-resident” as set out in the 1911 Motor Vehicle Law was continued in Section 20 of the Motor Vehicle Law of 1919. The 1919 Motor Vehicle Law was amended in an Act of 1931 deleting this paragraph defining a non-resident.
There had been no determinations prior to adoption of the Motor Vehicle Law of 1957 by Illinois courts of whether or not the term resident was synonymous with the term domicile in regard to natural persons, but it had generally been regarded as having the same meaning as domicile by the enforcement authorities. “Residents” were defined to include partnerships, firms or associations if their principal place of business was located in the State of Illinois. The determination of “principal place of business” was a factual determination, however, in general it was the place where the partners transacted their principal business, kept their central file of records and maintained their principal executive offices.
A. corporation was deemed to be a resident of the State of Illinois if it was either incorporated in the State of Illinois, or if its principal place of business was in the State of Illinois. Prior to the effective date of Illinois Motor Vehicle Law on January 1, 1958, a corporation was deemed a resident of the State of Illinois if it were incorporated in the State of Illinois. (See Home Life Ins. Co. of New York v. State, 2 Ill.Ct.C1. 50 and Thornton v. Nome & Sinook Co., 260 Ill.App. 76). It was the purpose of the Illinois
Motor Vehicle Law, former section 1-155 of this chapter, to require the registration of vehicles using Illinois highways by foreign corporations, incorporated in other states such as Delaware, if their “principal place of business” was located in Illinois.
HISTORICAL AND STATUTORY NOTES
Prior Laws:
Laws 1957, p. 2706, ⤠1-155.

Ill. Rev.Stat.1967, ch. 95 1/2, ⤠1-155.
RESEARCH REFERENCES
Encyclopedias
Illinois Law & Prac. Automobiles & Mtr. Vehicles ‚§ 268, Process‚”Service on Secretary cf State for Nonresident Defendants–Persons Subject to Substituted Service.
NOTES OF DECISIONS
Prior law 1
1. Prior law
Term “resident” is synonymous with “domicile” for purposes of 10-301 of former diapter 95 1/2. Hatcher v. Anders, App. 2 Dist. 1983, 72 Ill.Dec. 769, 117 Ill.App.3d 236, 453 N.E.2d 74. Automobiles 235
6’25 I.L.C.S. 5/1-173, IL ST CH 625 ‚§ 5/1-173
Current through P.A. 94-1054, P.A. 94-1056 to P.A. 94-1068 of the 2006 Reg. Sess.
END OF DOCUMENT

625 ILCS 5/6-700
Formerly cited as IL ST CH 95 1/2 6-700
Chapter 625. Vehicles
Act 5. Illinois Vehicle Code (Refs & Annos)
10-Chapter 6. The Illinois Driver Licensing Law (Refs & Annos) Article VII. Driver License Compact (Refs & Annos) 4-700. Defm!tions
⤠6-700. Definitions. As used in this compact:
(a) “State” means a state, territory or possession of the United States, the District of Columbia, or the Commonwealth of Puerto Rico.
(b) “Home state” means the state which has issued and has the power to suspend or revoke the use of the license or permit to operate a motor vehicle.
(c) “Conviction” means a conviction of any offense related to the use or operation of a motor vehicle which is prohibited by state law, municipal ordinance or administrative rule or regulation, or a forfeiture of bail, bond or other security deposited to secure appearance by a person charged with having committed any such offense, and which conviction or forfeiture is required to be reported to the licensing authority.
CREDIT(S)
P.A. 76-1586, ⤠6-700, added byP.A. 76-1615, ⤠1, eff. July 1, 1970. FORMER REVISED STATUTES CITATION
Formerly Ill.Rev.Stat.1991, ch. 95 1/2 , ⦠6-700.
HISTORICAL AND STATUTORY NOTES
Prior Laws:
Laws 1963,p.3161, 1.
I11.Rev.Stat.1967, ch. 95 1/2 , ⤠501.
Complementary Legislation:
Ala.‚”Code 1975, 32-6-30 to 32-6-36.
Ariz.–A.R.S. ‚§ 28-1851 to 28-1855.
ArL‚”A.C.A. 27-17-101 to 27-17-106.
Cal.‚”West’s Ann.Cal.Vehicle Code, 15000 to 15003, 15020 to 15028.
Colo..‚”West’s C.R.S.A. 24-60-1101 to 24-60-1107.
Dei.–21 Del.C. 8101.
D.C.‚”D.C. Official Code, 2001 Ed. 50-1001, 50-1002.
Fla.‚”West’s F.S.A. H 322.43 to 322.48.
Hawaii–HR S ‚§‚§ 286C-1, 286C-2.

Idaho–I.C. ‚§‚§ 49-2001 to 49-2003.

Illinois–S.H.A. 625 ILCS 5/6-700 to 5/6-708.
Ind.-West’s A.I.C. 9-28-1-1 to 9-28-1-6.

Iowa–I.C.A. ‚§‚§ 321C.1, 321C.2.

Kan.–K.S.A. 8-1212.
La.–LSA-R.S. 32:1420 to 32:1425.

Maine–29-A M.R.S.A. ‚§‚§ 1451 to 1475.

Md.-Code, Transportation, ‚§‚§ 16-701 to 16-708.
Mass.–M.G.L.A. c. 90, ‚§ 30B.

Minn.–M.S.A. ‚§‚§ 171.50 to 171.56.

Miss.–Code 1972, ‚§‚§ 63-1-101 to 63-1-113.

Mo.–V.A.M.S. ‚§‚§ 302.600, 302.605.

Mt.-M.C.A. 61-5-401 to 61-5-406.

Neb.–R.R.S. 1943, ‚§A1-113.

Nev.–N.R.S. 483.010 to 483.630.

N.H.–RSA 263.77.
N.J.–N.J.S.A. 39:5D-1 to 39:5D-14.
N.M.–NMSA 1978, ‚§‚§ 66-5-49 to 66-5-51.
N.Y.–McKinney’s Vehicle & Traffic Law, ‚§ 516.
N.C.–G.S. ‚§‚§ 20-4.21 to 20-4.30.
Ohio–R.C. ‚§‚§ 4507.60 to 4507.63.
Ok1.–47 Okl.St.Ann. ‚§‚§ 781 to 788.
Pa.–75 Pa.C.S.A. ‚§‚§ 1581 to 1585.
S.C.–Code 1976, ‚§‚§ 56-1-610 to 56-1-690.
Tex.–V.T.C.A., Transportation Code ‚§‚§ 523.001 to 523.011.

Utah–U.C.A. 1953, 53-3-601 to 53-3-607.
Vt.–23 V.S.A. ‚§‚§ 3901 to 3910.
Va.–Code 1950, ‚§‚§ 46.2-483 to 46.2-488.
Wash.–West’s RCWA 46.21.010 to 46.21.040.
W.Va.-Code, 17B-1A-1, 17B-1A-2.
Wyo.–Wyo.Stat.Ann. ‚§‚§ 31-7-201, 31-7-202.
LIBRARY REFERENCES
States
Westlaw Topic No. 360.
C.J.S. States ‚§‚§ 31 to 32, 143.
RESEARCH REFERENCES
Encyclopedias
Illinois Law & Prac. Automobiles & Mtr. Vehicles ⤠112, Out-Of-State Misconduct or Convictions.
NOTES OF DECISIONS
Conviction 1
1. Conviction
Georia judgment upon plea of nob o contendere to driving under influence charge constitutes “conviction” for purposes of driver license compact. Rigney v. Edgar, App. 1 Dist.1985, 90 Ill.Dec. 548, 135 I1l.App.3d 893, 482 N.E.2d 367. appeal denied. Automobiles .,( 144.1(3)
625 5/6-700, IL ST CH 625 ⤠5/6-700
Current through P.A. 94-1054, P.A. 94-1056 to P.A. 94-1068 of the 2006 Reg. Sess.
END OF DOCUMENT

 

CASE FROM MOBILE ALABAMA ILLUSTRATING THE COMMERCIAL NATURE OF LICENSING UNDER POLICE POWER

36 L.R.A. 615,112 Ala. 654,21 So. 344
Supreme Court of Alabama.
DAVIS V. PETRINOVICH, TAX COLLECTOR. E1 Rehearing denied February 4, 1897.
Nov. 24, 1896.
Appeal from chancery court, Mobile county; W. H. Tayloe, Chancellor.
Suit by Franklin P. Davis against Frank Petrinovich, tax collector. Bill dismissed, and complainant appeals. Reversed.
*344 The mayor and general council of the city of Mobile, on March 16, 1896, adopted a general license ordinance, levying a license tax against all trades and occupations carried on in said city, and included therein a license tax on bicycles. The appellant in this case, Franklin P. Davis, a citizen and taxpayer of the city of Mobile, filed the present bill against the appellee, Frank Petrinovich, tax collector of the city of Mobile, under the provisions of section 45 of the act granting a charter to the city of Mobile (Acts 1886-87, p. 223), to enjoin the collection of said license tax. The complainant owned and used a bicycle, solely and exclusively for his pleasure and convenience, and his bicycle was not used in any way for the transportation of goods or merchandise, and was not kept for hire at any place in the city of Mobile. The other facts of the case are sufficiently stated in the opinion. The defendant moved to dissolve the temporary injunction which was issued, and to dismiss the bill for want of equity. This motion was considered on the final hearing. Upon the final submission of the cause, on the pleadings and proof, the chancellor decreed that the motions were well taken; and ordered that the cause be dismissed, and that the injunction theretofore issued be dissolved.

HARALSON, J.
1. The fact of the pendency of another suit by one Rolston against the defendant in this case, in the same court with this suit, and in reference to the same subject-matter, is not well taken. It was admitted on the trial of this case, that the case of Rolston was instituted in the Mobile chancery court, on the 24th March, 1896; that it “was substantially the same in object and almost identical in language with that of Davis v. Petrinovich, Tax Collector [this case], and that it was brought in behalf of all parties in interest by Hugh Rolston, but was amended on the hearing, so as to be only on his own account,” and that the “said Rolston bill was answered, evidence taken and case submitted and argued on the pleadings and testimony, at the same time with this, the Davis case.” What disposition, if any, has been made of the Rolston case,-whether or not it has been decided,-is not shown, nor is it shown, that said cause was submitted on the same evidence even, as that on which this cause was submitted and tried. That cause, then, confessedly, is not between the same parties as those to this case, though relating to the same subject-matter; is between different parties; is not shown to be on the same evidence on which this cause was tried, and is still pending undetermined in said court. All that is shown is, that in said suit, the plaintiff in this cause contributed one dollar towards paying the expenses of conducting it. These facts furnished no ground for abating the present suit. Foster v. Napier, 73 Ala. 595.
2. That a bicycle comes properly within the definition of a carriage or vehicle, we apprehend can no longer admit of dispute. A vehicle is defined to be, “any carriage moving on land, either on wheels or on runners; a conveyance; that which is used as an instrument of conveyance, transmission, or communication.” Cent. Dict. And a carriage in the same lexicon is defined as, “that which is used for carrying or transporting, especially on or over a solid surface. A wheeled vehicle for the conveyance of persons.” In Taylor v. Goodwin, 4 Q. B. Div. 228, it was held, that a person riding a bicycle on a highway at such a place as to be dangerous to passers-by, may be convicted under an act to prevent any person riding any horse or beast, or driving any sort of carriage furiously, so as to endanger the life or limb of any passenger. The court said: “It may be that bicycles were unknown at the time when the act passed, but the legislature clearly desired to prohibit the use of any sort of carriage in any manner dangerous to the life or limb of any passenger. The question is, whether a bicycle is a carriage within the meaning of the act. I think the word ‘carriage’ is large enough to include a machine such as a bicycle which carries the person who gets upon it, and I think such person may be said to drive it.” In Williams v. Ellis, 5 Q. B. Div. 175, it was held, in construction of the act allowing tolls to be collected at a gate on a turnpike road, that a bicycle was not embraced within the purview of the act imposing a toll of 6 pence, “for every *** sociable, chariot, berlin, landau, &c., or other such carriage,” for the reason, that the act imposed a toll on particular carriages which were described as, “or other such carriages,” which latter must be ejusdem generis with the carriages previously specified. The case of Taylor v. Goodwin was referred to in this later decision with approval. It is a *345 matter of common knowledge, that the bicycle is now used for the purpose of the conveyance of parties owning or hiring the wheels, largely for the purpose of pleasure and exercise, and that in cities and towns, especially, they are coming to be used for the transportation, from point to point, of packages of goods and merchandise such as they are fitted to carry. What further possibilities await the bicycle as a means of the transportation of persons, goods and merchandise, it is not important now to consider or predict. They remain to be developed. On principle and authority, however, it may be said, that it has taken its place safely with the vehicles and carriages of the time, entitled to the rights of the road and street equally with them, and is subject in its use to the same liabilities. Its use upon the highways of the country and upon the streets and sidewalks of towns and cities may be regulated under legislative and delegated municipal authority. Potter’s Law of Road & Roadside, 157; Elliott, Roads & S. pp. 331, 635; Horr & B. Mun. Ord. ‚§ 247; Clemenston, Road Rights, ‚§‚§ 99, 106-109; Mercer v. Corbin, 117 Ind. 450,20 N. E. 132; Holland v. Bartch, 120 Ind. 46,22 N. E. 83, and authorities supra; Thompson v. Dodge, 58 Minn. 555, 60 N. W. 545.
3. Section 26 of the charter of Mobile (Acts 1886-87, p. 240), provides, that “the general council is authorized and empowered to levy and collect for each year of its existence, upon all real and personal property, and all subjects of state taxation within said city of Mobile, except the tax levied on polls, a tax of not exceeding six-tenths of one per cent. of the value of such property, or subjects of taxation during the year preceding that for which the general council may assess and levy the tax above provided for.” By section 21 of the amended charter (Acts 1894-95, p. 387), the regulation of “hackney-coaches, carriages, wagons, carts and drays,” was conferred upon the general council, and section 40 of said amended charter provides, “that the said general council shall, besides the tax heretofore authorized (section 26), have the authority to assess and collect from all persons and corporations, trading and carrying on any business, trade or profession, by an agent or otherwise, within the limits of said corporation, a tax license which shall be fixed and declared each year by an ordinance of said corporation, and the license so said shall be issued and the amount imposed shall be collected as may be provided by ordinance of said corporation *** A vehicle license may be imposed in addition to business license, provided that said license shall only apply to vehicles used in the transportation of goods and merchandise, and vehicles used for hire at the public stands; *** that in addition to the license tax imposed on livery stables, there shall be an additional license tax not exceeding one dollar for every carriage, and fifty cents for every buggy owned and used for hire by such livery stable.”
4. On the 16th March, 1896, the general council of Mobile adopted a general license ordinance, providing, “That a license-tax for the fiscal year, beginning on the 16th March, 1896, and ending on the 14th March, 1897, is hereby imposed and assessed on each person, firm, association, or corporation trading, or carrying on any business, trade or profession, by agent or otherwise within the limits of the city of Mobile,” followed by a schedule of special licenses required in each instance, among others, specifying bicycles,-“including tags furnished for same,-$1.00.” The imposition of such a license tax, it has been well said, is such as may be referred to the taxing power, or to the police power,-to the latter, when its object is merely to regulate, and the amount levied is merely to pay the expenses of enforcing the regulation; including reasonable compensation for the additional expense of municipal supervision over the particular business or vocation; and to the taxing power, if its main object is revenue. If, however, it appears that the legislature has not bestowed the right to tax under either of these delegated powers, but has omitted it, the imposition of the tax is without legislative sanction and void. City of St. Louis v. Green, 7 Mo. App. 468; Id., 70 Mo. 562; 1 Dill. Mun. Corp. ‚§ 357; Burroughs, Tax’n, ‚§ 77; Van Hook v. City of Selma, 70 Ala. 361.
5. The only authority, then, appearing in the charter of said city, for levying a distinctive license tax on vehicles of any description, apart from the general police power to regulate them, is confined by the terms of the act (section 21) to “hackney coaches, carriages, wagons, hacks and drays,” and to such only of these, as are used in the transportation of goods and merchandise; to vehicles used for hire at the public stands, and on carriages and buggies owned and used for hire by livery stables. If a business man in Mobile pays a business license tax, as he may be required under the charter to do, he may be also required, under the charter, to pay an additional license tax on any vehicle he uses in his business, in the transportation of goods and merchandise, and he is relieved from such a tax on other vehicles he may own. It was not within the contemplation of the legislature, as is evident from the text, that an inhabitant of that city should be required to pay such a tax on his pleasure carriage or vehicle, of whatever description, if not used in the business of transportation of goods and merchandise. The policy of the legislature seems to have been to confine the license tax on vehicles, whether imposed under the police or taxing power, to such of them as are used in the transportation of goods and merchandise, and those kept for hire, and to relieve all other carriages from such a tax. City of St. Louis v. Green, 46 Mo. 574; City of Hannibal v. Price, 29 Mo. App. 280.
6. In the charter (Acts 1886-87, p. 223), in section 45, after limiting the rate of taxation, *346 it is provided: “Nor shall said general council levy any tax for any other purpose than those specially stated in this act, and any tax or license charges other than those authorized by said sections 26 and 40 (of the charter) which said general council may levy or attempt to levy, shall be null and void and not collectible, and any tax-payer may enjoin by bill in chancery, and restraining without bond, the tax-collector of the city of Mobile from collecting any tax which said general council may levy or attempt to impose beyond the aforesaid tax and license charges. The provisions of this act shall not be enlarged, or extended so as to be made applicable to or for any other purposes than those stated in this act.” It is manifest, therefore, that the levy of said bicycle tax was outside of the powers of the general council to levy, and was illegally levied. It is provided again, that the taxes levied shall have the force and effect of a judgment against the person assessed therewith, to which a preference is given over all other securities and incumbrances, and for the collection of which a lien is given on all the real and personal property of the tax payer; that the mayor shall certify on the tax book, that said taxes have been fixed and levied, and append his warrant, directed to the tax collector, authorizing and commanding him to collect the taxes so levied, and shall deliver said tax book and warrant to the tax collector, whose duty it is made forthwith to notify the public by advertisement for 30 days in some newspaper published in the city, that he is ready to receive payment of the taxes so levied; that the tax collector shall be charged with the whole amount of the assessed taxes for the year; that he shall issue garnishment process for the collection of taxes and licenses as on judgment returnable to any court having jurisdiction of the amount; that after the expiration of 90 days from the first publication of the tax collector’s notice, as aforesaid, he may levy upon and seize any personal property, if any there be, or if there be none, or not sufficient personal property, then upon the real estate of the delinquent tax payer; and that he shall be charged with and accountable for the whole amount of the assessed taxes for the year, and shall only discharge himself from such accountability by showing that the amounts unpaid could not have been collected by the exercise of the means given him. Sections 31, 32, 36, 39 of original charter (Acts 1886-87, pp. 242,243; Amendatory Acts 1894-95, p. 387, ‚§ 6). Without these provisions, it may be, that the tax being illegal, there would be an adequate remedy at law against its collection, and chancery would not enjoin (High, Inj. ‚§ 543, 545); and that, $20 being the fixed minimum of chancery jurisdiction, the court would not entertain a bill to enjoin the collection of a tax of $1. Hall v. Cannte, 22 Ala. 650; Campbell v. Conner, 78 Ala. 211. But, the statute takes the case from the influence of any such rules as are applicable to the general exercise of the jurisdiction of equity courts; and any taxpayer is authorized by the charter, as we have seen, to enjoin the levy and collection of any illegal tax levied and assessed by the general council. The act in terms bestows the right of injunction without bond, in favor of the taxpayer, whenever the general council “may levy or attempt to impose (any tax or license) beyond the aforesaid tax and license charges,” which may not be rightfully levied and collected. It is idle to say, that the general council have not levied and attempted to impose this illegal tax, or that the collector has no intention of collecting the same, because it is illegal. It has been levied, and the collector is charged with it, and by the terms of the charter, must account for and pay it himself unless he has been unable to do so after he has used all means conferred on him for its collection, and the collector in this suit is seeking to maintain the legality of said levy. The wrong done the appellant was in the imposition of said illegal tax, and it was not incumbent on him to delay filing his bill until the further wrong of a levy on his property had occurred or his creditors were garnished. If so, the very purpose of the legislature in granting relief against such unlawful menaces of the taxpayer’s rights would thereby be defeated. 1 High, Inj. ‚§ 18.
7. The proofs showed that appellant was a taxpayer of the city; that this illegal tax had been levied, and there was an attempt to impose it on his property; that the collector had made the publication as required by the statute; that the bicycle was his private carriage, used alone for the purposes of pleasure, and not for the transportation of goods and merchandise. The bill should not have been dismissed for want of equity, but the motion to dismiss it on that account should have been overruled, and the injunction perpetuated. Reversed, and a decree will be here rendered, restoring the injunction that had been granted, and making it perpetual. Reversed and rendered.

Ala. 1896.
Davis v. Petrinovich
36 L.R.A. 615, 112 Ala. 654, 21 So. 344
END OF DOCUMENT

 

OTHER NOTES AND SOURCES

S.H.A. ch. 95‚½, ‚§‚§ 6-101 et seq.
Driver’s license as privilege or property right see 11 De Paul L.Rev. 125 (1961).
11 De Paul L.Rev. 125 (1961)

References

⤠97. Nature and Effect of License; Transfer

Legal Encyclopedias

C.J.S., Motor Vehicles ⤠159
A license to operate a motor vehicle is a mere privilege.
A license to operate a motor vehicle on the public highways is a mere privilege and is not a property right. [Foot Note 38]

While the Illinois Driver Licensing Law no longer provides for chauffeur’s licenses, as discussed supra ‚§ 93, the licensing of chauffeurs was a grant, personal to the applicant, did not extend to anyone else, [Foot Note 39] and a chauffeur’s license was not transferable. [Foot Note 40]
[Foot Note 38] See 1947 Op.Atty.Gen. 115.

[Foot Note 39] Use by son of father’s license

Boy under age of eighteen years, ineligible to obtain a chauffeur’s license, has no legal right to operate father’s taxicab, although father has a chauffeur’s license.‚”See 1926 Op.Atty.Gen. 507.

[Foot Note 40] See 1916 Op.Atty.Gen. 910.
END OF SECTION
Illinois Law & Practice
Automobiles and Motor Vehicles
Chapter 9. Crimes and Prosecutions
B. Particular Offenses

Correlation Table  References

‚§ 425. Driving without Driver’s License

Legal Encyclopedias

C.J.S., Motor Vehicles ⤠639(1)
It is a punishable offense for any person to drive a motor vehicle unless such person has a valid license or permit.
Under the Illinois Vehicle Code, [Foot Note 97] and under some municipal ordinances, [Foot Note 98] it is a punishable offense for any person to drive a motor vehicle unless such person has a valid license or permit. [Foot Note 99]

It is essential for a conviction of failure to have a driver’s license when operating a motor vehicle that there be proof beyond a reasonable doubt that the defendant was driving the automobile at the time in question. [Foot Note 1]
CUMULATIVE SUPPLEMENT

Cases:

Driver’s arrest outside jurisdiction of arresting officer was within officers statutory authority to arrest, where officer observed driver commit traffic infraction forming sufficient basis for stop while within officer’s jurisdiction and formed initial suspicion that driver was driving with suspended license while driver was within officer’s jurisdiction. People v. Schaefer, 343 Ill. App. 3d 159, 277 Ill. Dec. 600, 796 N.E.2d 686 (2d Dist. 2003).
[END]
4 Ill. Law and Prac. Automobiles and Motor Vehicles ⤠91

Illinois Law & Practice
Automobiles and Motor Vehicles
Chapter 4. Licensing and Regulation of Drivers
A. In General

References

⤠91. General Considerations
AutomobilesKey Symbol130, 136, 145

Legal Encyclopedias

C.J.S., Motor Vehicles ‚§‚§ 146 et seq.

Forms

Modern Legal Forms, Automobiles
No person except those expressly exempted may drive a motor vehicle on an Illinois highway unless he has a valid license or permit.
Under the Illinois Driver Licensing Law, which is part of the Illinois Vehicle Code of 1969, effective July 1, 1970, and which regulates the privilege of operating motor vehicles on the highways, no person except those expressly exempted shall drive any motor vehicle on a highway in the State of Illinois unless he has a valid license or permit, or a restricted license or permit, issued under the Act. [Foot Note 1]

The Secretary of State is charged with the administration of the Act and may make and enforce rules and regulations relating to its administration. [Foot Note 2]

The failure of a driver to have a license has no logical relevance to the issues of negligence or contributory negligence. [Foot Note 3]

Local regulations. Within constitutional limitations, municipalities may regulate and license drivers of motor vehicles to the extent that authority has been delegated by the General Assembly; [Foot Note 4] but any person licensed as a driver under the Driver Licensing Law may not be required by any city, village, incorporated town or other municipal corporation to obtain any other license to exercise the privilege thereby granted. [Foot Note 5]

Under the Cities and Villages Act, municipalities have the power to license, tax, and regulate hackmen, draymen, omnibus drivers, carters, cabmen, porters, expressmen, and all others pursuing like occupations, and to prescribe their compensation; [Foot Note 6] and motor trucks, motor driven commercial vehicles, and motor vehicles which are used for public hire are excepted from the prohibition of a municipal tax or license fee. [Foot Note 7]

The City of Chicago has the right to enact ordinances restricting the use of its streets as a place of business by taxicab drivers unless they are properly licensed. [Foot Note 8] It has been held that an ordinance which compels a person who uses his automobile for his private business and pleasure only to submit to an examination and to take out a license imposes a burden on one class of citizens in the use of the streets not imposed on the others, and that it is beyond the power of a municipality and void. [Foot Note 9]

In any event an ordinance which is unreasonable and arbitrary is invalid. [Foot Note 10]

Driver’s license medical review. A Driver’s License Medical Advisory Board has been established within the Office of Secretary of State, to establish standards for determining the degree to which a person’s medical condition constitutes a limitation to the person’s ability to operate a motor vehicle or causes the person to be a driving hazard. Cases shall be referred to the Board by the Secretary, for medical evaluation of the person under review, and to determine what medical conditions exist that may impair the individual’s ability to operate a motor vehicle safely. [Foot Note 10.5]

Driver’s duty to report medical condition. Every driver shall report to the Secretary any medical condition that is likely to cause loss of consciousness or any loss of ability to safely operate a motor vehicle within 10 days of the driver becoming aware of the condition. [Foot Note 10.10]
[Foot Note 1] S.H.A. ch. 95‚½, ‚§‚§ 6-101 et seq.

S.H.A. ch. 95‚½, ‚¶‚¶6-101 et seq., is now 625 ILCS 5/6-101 et seq., recodified effective January 1, 1993.

See 1958 Op.Atty.Gen. 218; 1961 Op.Atty.Gen. 16.

Driver’s license as privilege or property right see 11 De Paul L.Rev. 125 (1961).

People v. Frye, 1983, 4 Dist., 447 N.E.2d 1065, 69 Ill.Dec. 630, 113 Ill.App.3d 853 (possession of valid license at any time is prima facie proof that holder must have driven upon highways of state as predicate for application of implied consent statute).

[Foot Note 2] S.H.A. ch. 95‚½, ‚§ 6-211.

S.H.A. ch. 95‚½, ‚¶6-211, is now 625 ILCS 5/6-211, recodified effective January 1, 1993.

Revocation of driving school license

Perez v. Edgar, 1982, 436 N.E.2d 639, 62 Ill.Dec. 613, 106 Ill.App.3d 981.

[Foot Note 3] Perry v. Richerson, 1954, 122 N.E.2d 75, 3 Ill.App.2d 338.

[Foot Note 4] Power conferred by charter

City of Chicago Charter, ‚§ 1, cls. 7, 9, 66, delegating police power to the city, and giving power over its streets, authorized it to pass Code Ordinances 1911, ‚§ 2696, prohibiting the use of automobiles in the transportation of passengers or merchandise by a person not competent who has not been examined and licensed.‚”City of Chicago v. Kluever, 1913, 100 N.E. 917, 257 Ill. 317.

[Foot Note 5] S.H.A. ch. 95‚½, ‚§ 6-101(c).

S.H.A. ch. 95‚½, ‚¶6-101(c), is now 625 ILCS 5/6-101(c), recodified effective January 1, 1993.

[Foot Note 6] S.H.A. ch. 24, ⤠11-42-6.

S.H.A. ch. 24, ‚¶11-42-6, is now 65 ILCS 5/11-42-6, recodified effective January 1, 1993.

[Foot Note 7] S.H.A. ch. 24, ⤠8-11-4.

S.H.A. ch. 24, ‚¶8-11-4, was amended in 1983 (provision deleted).

Ordinance requiring license

Cities and villages may adopt ordinances not inconsistent with Motor Vehicle Law requiring all persons operating cars for public hire or commercial purposes to secure a license so to do.‚”See 1914 Op.Atty.Gen. 1131.

[Foot Note 8] City of Chicago v. Dorband, 1939, 18 N.E.2d 107, 297 Ill.App. 617.

People v. Thompson, 1922, 225 Ill.App. 567.

[Foot Note 9] City of Chicago v. Banker, 1904, 112 Ill.App. 94 (Chicago ordinance of June 30, 1902).

[Foot Note 10] Ambulance driver

Portion of ordinance prohibiting issuance of ambulance attendant-driver’s license to any person at any time after conviction of crime involving use of deadly weapon, traffic in narcotic drugs, infamous crime against nature, incest or rape did not bear any relationship to public health or safety, was unreasonable and arbitrary and was invalid as to ambulance attendant-driver who owned ambulance service and had been convicted of armed robbery 17 years prior to application for license.‚”Roth v. Daley, 1970, 256 N.E.2d 166, 119 Ill.App.2d 462.

[Foot Note 10.5] S.H.A. ch. 95‚½ ‚¶‚¶6900 et seq. is now 625 ILCS 5/6-900 et seq., recodified in 1993.

S.H.A. ch. 95‚½, ‚¶‚¶6-900 et seq., added in 1992.

[Foot Note 10.10] 625 ILCS 5/6-116.5, added in 1996.
IL-LP AUTOS ⤠91

END OF SECTION

C.J.S., Motor Vehicles ‚§‚§ 146 et seq.

60 C.J.S. Motor Vehicles ⤠262

Corpus Juris Secundum
Motor Vehicles
By John Bourdeau, J.D., Paul Coltoff, J.D., Edward K. Esping, J.D., of Professional Publishing Associates, Inc., John R. Kennel, J.D. of the staff of the National Legal Research Group, Inc., Sonja Larsen, J.D., Lucas Martin, J.D., Thomas Muskus, J.D., Charles Nagy, J.D., Carmela Pellegrino, J.D., Eric C. Surette, J.D., Susan L. Thomas, J.D., of Professional Publishing Associates, Inc.
V. License and Regulation of Drivers or Chauffeurs
A. Control and Regulation
3. Persons Subject to License Regulations
a. In General

Topic Summary‚  Correlation Table

⤠262. Generally

License regulations apply to the driver of a motor vehicle, and must be complied with by all coming within the terms of such regulations.
Generally, by virtue of statutory provisions or regulations, only persons who hold licenses as chauffeurs or operators may lawfully operate or drive motor vehicles upon the public highways.[Foot Note 1] Where the operator of a private commercial carrier is obligated by law to obtain a commercial driver’s license, this requirement applies to all persons regularly engaged as operators of such carriers.[Foot Note 2] In some jurisdictions, a person who operates a motor vehicle for hire must obtain a special license,[Foot Note 3] but if a vehicle is operated for purposes other than furnishing transportation for hire no special license is required.[Foot Note 4]

Where every operator is required to obtain a license, the license is personal to the particular person who operates the motor vehicle and must be obtained by, and issued to, him or her.[Foot Note 5] Therefore, a corporation or partnership which owns or controls a motor vehicle is not entitled to a license to operate it.[Foot Note 6]

Where statutorily provided that no person may operate a motor vehicle for hire or as a chauffeur unless specially licensed so to do, an owner who is licensed merely as an operator, and not as a chauffeur, is not authorized to operate his or her automobile for hire.[Foot Note 7] However, a person holding a license as a commercial operator or chauffeur is not required to have an ordinary operator’s license.[Foot Note 8]

Unless expressly exempted, state officers and employees come within the requirements of licensing provisions broad enough in their terms to include such persons.[Foot Note 9] A municipality operating busses running through another city is required to comply with reasonable regulations concerning the qualifications of drivers of such busses.[Foot Note 10]
Steering towed car.

A person steering a disabled motor vehicle which is being towed by another car is not operating or driving a motor vehicle within the meaning of a statutory provision requiring an operator or driver to be licensed.[Foot Note 11]
[Foot Note 1] Tex.‚”Leatherman v. Starkey, 356 S.W.2d 151 (Tex. Civ. App. Amarillo 1962), writ refused n.r.e., (Oct. 6, 1962).

Intent to change residence as affecting residence, see C.J.S., Domicile ‚§‚§ 14 to 17.

License not required for driver on unfinished road

W.Va.‚”State v. Boyles, 112 W. Va. 125, 163 S.E. 814 (1932).
No operating or driving where vehicle not started

N.Y.‚”Ricciardi v. McMahon, 163 Misc. 659, 299 N.Y.S. 440 (City Ct. 1937).
Intention to change residence

D.C.‚”Bush v. District of Columbia, 78 A.2d 234 (Mun. Ct. App. D.C. 1951).

[Foot Note 2] Driver employed by railroad

Miss.‚”Lumpkin v. Birdsong, 212 Miss. 616, 55 So. 2d 230 (1951).

[Foot Note 3] Operation for hire construed

R.I.‚”State v. Brown, 97 R.I. 95, 196 A.2d 138 (1963).

[Foot Note 4] R.I.‚”State v. Brown, 97 R.I. 95, 196 A.2d 138 (1963).

[Foot Note 5] N.H.‚”Emerson Troy Granite Co. v. Pearson, 74 N.H. 22, 64 A. 582 (1906).

Legal name requirement valid

U.S.‚”Forbush v. Wallace, 341 F. Supp. 217 (M.D. Ala. 1971), judgment aff’d, 405 U.S. 970, 92 S. Ct. 1197, 31 L. Ed. 2d 246 (1972).

[Foot Note 6] N.H.‚”Emerson Troy Granite Co. v. Pearson, 74 N.H. 22, 64 A. 582 (1906).

Registration of the vehicle in corporate or partnership name, see ⤠168.

[Foot Note 7] Mass.‚”Griffin v. Hustis, 234 Mass. 95, 125 N.E. 387 (1919).

[Foot Note 8] Cal.‚”Sogawa v. Department of Motor Vehicles, 100 Cal. App. 2d 181, 223 P.2d 269 (2d Dist. 1950).

[Foot Note 9] Mo.‚”City of St. Louis v. Carpenter, 341 S.W.2d 786, 87 A.L.R.2d 1219 (Mo. 1961).

[Foot Note 10] Ohio‚”Cleveland Ry. Co. v. Village of North Olmsted, 130 Ohio St. 144, 4 Ohio Op. 31, 198 N.E. 41, 101 A.L.R. 426 (1935).

[Foot Note 11] Ohio‚”City of Toledo v. Burks, 100 Ohio App. 127, 60 Ohio Op. 104, 136 N.E.2d 150 (6th Dist. Lucas County 1955).
END OF SECTION
60 C.J.S. Motor Vehicles ⤠256

Corpus Juris Secundum
Motor Vehicles
By John Bourdeau, J.D., Paul Coltoff, J.D., Edward K. Esping, J.D., of Professional Publishing Associates, Inc., John R. Kennel, J.D. of the staff of the National Legal Research Group, Inc., Sonja Larsen, J.D., Lucas Martin, J.D., Thomas Muskus, J.D., Charles Nagy, J.D., Carmela Pellegrino, J.D., Eric C. Surette, J.D., Susan L. Thomas, J.D., of Professional Publishing Associates, Inc.
V. License and Regulation of Drivers or Chauffeurs
A. Control and Regulation
1. In General

Topic Summary‚  Correlation Table

⤠256. Purpose

Motor vehicle operators and chauffeurs are generally licensed by the state in the interest of public safety.
Generally, the purposes of requiring chauffeurs and operators to be licensed are to insure the competency of the operators of motor vehicles and to regulate the use of this means of rapid transit on the public highways, in the interest of public safety.[Foot Note 1] It is also the purpose of such licensing to furnish a further guaranty that proper use of the vehicle will be made,[Foot Note 2] and that it will be operated in compliance with applicable statutory provisions.[Foot Note 3] The purpose of requiring the operator of a motor vehicle to report changes of address to the commissioner of motor vehicles is identification of drivers and the facilitation of communication with them.[Foot Note 4]
[Foot Note 1] Nev.‚”State, Dept. of Motor Vehicles and Public Safety v. Miles, 111 Nev. 681, 895 P.2d 1316 (1995).

[Foot Note 2] State may make and enforce regulations reasonably calculated to promote care

Neb.‚”Russell v. State, Dept. of Motor Vehicles, 247 Neb. 885, 531 N.W.2d 212 (1995).

[Foot Note 3] N.H.‚”Emerson Troy Granite Co. v. Pearson, 74 N.H. 22, 64 A. 582 (1906).

Purpose of requirement that epilepsy patients be disclosed to licensing authority

U.S.‚”Harden v. Allstate Ins. Co., 883 F. Supp. 963 (D. Del. 1995).

[Foot Note 4] Conn.‚”State v. Baltromitis, 5 Conn. Cir. Ct. 72, 242 A.2d 99 (App. Div. 1967).
END OF SECTION
60 C.J.S. Motor Vehicles ⤠257

Corpus Juris Secundum

Motor Vehicles
By John Bourdeau, J.D., Paul Coltoff, J.D., Edward K. Esping, J.D., of Professional Publishing Associates, Inc., John R. Kennel, J.D. of the staff of the National Legal Research Group, Inc., Sonja Larsen, J.D., Lucas Martin, J.D., Thomas Muskus, J.D., Charles Nagy, J.D., Carmela Pellegrino, J.D., Eric C. Surette, J.D., Susan L. Thomas, J.D., of Professional Publishing Associates, Inc.
V. License and Regulation of Drivers or Chauffeurs
A. Control and Regulation
1. In General

Topic Summary‚  Correlation Table

⤠257. Right to operate as privilege
AutomobilesKey Symbol130, 132 to 136, 143
The right to operate a motor vehicle is, generally, a privilege, not a right.
A license is, generally, merely a personal privilege,[Foot Note 1] which may be revoked.[Foot Note 2] Where a license is deemed a personal privilege, it is not a vested right,[Foot Note 3] nor is it considered a natural right[Foot Note 4] or a civil right.[Foot Note 5] A driver’s license is also not a contract or property right[Foot Note 6] in any legal or constitutional sense.[Foot Note 7] Neither is it a right of such a nature that it may be sold or assigned.[Foot Note 8] The payment by the licensee of the required fees upon the issuance to him or her of the operator’s license does not convert the privilege granted into a property right.[Foot Note 9]

In some jurisdictions, however, while still recognizing that a license is a personal privilege, a license is deemed in the nature of a right.[Foot Note 10] In other jurisdictions, a license is both a personal privilege and a property right.[Foot Note 11] In still other jurisdictions, a license to operate a motor vehicle is more of a property interest.[Foot Note 12] A license may also be determined to be a vested property right in the individual.[Foot Note 13]
[Foot Note 1] La.‚”State v. Jackson, 764 So. 2d 64 (La. 2000).

Highway driving a privilege, not a right

Ill.‚”People v. Jung, 192 Ill. 2d 1, 248 Ill. Dec. 258, 733 N.E.2d 1256 (2000).
Privilege not constitutionally guaranteed

N.D.‚”North Dakota Dept. of Transp. v. DuPaul, 487 N.W.2d 593 (N.D. 1992).
Conditional privilege

Va.‚”Walton v. Com., 255 Va. 422, 497 S.E.2d 869 (1998).
Important and valued privilege

Vt.‚”Bolio v. Malloy, 126 Vt. 424, 234 A.2d 336 (1967).
Limited right

Pa.‚”Com. v. Vivio, 209 Pa. Super. 90, 224 A.2d 777 (1966).
Qualified right

Mo.‚”Blydenburg v. David, 413 S.W.2d 284 (Mo. 1967).

[Foot Note 2] Mont.‚”Nelson v. Driscoll, 1999 MT 193, 295 Mont. 363, 983 P.2d 972 (1999).

Revocation or suspension of license, generally, see ‚§‚§ 290to 293.

[Foot Note 3] Cal.‚”O’Connor v. Superior Court, 90 Cal. App. 3d 107, 153 Cal. Rptr. 306 (1st Dist. 1979).

Not right entitled to protection against governmental interference or restriction

Colo.‚”People v. Zinn, 843 P.2d 1351 (Colo. 1993).

[Foot Note 4] Kan.‚”State v. Bowie, 268 Kan. 794, 999 P.2d 947 (2000).

Not absolute right

Ohio‚”Dobbins v. Ohio Bur. of Motor Vehicles, 75 Ohio St. 3d 533, 664 N.E.2d 908 (1996).

[Foot Note 5] Tex.‚”Allen v. State, 410 S.W.2d 52 (Tex. Civ. App. Houston 1966).

[Foot Note 6] Ohio‚”Dobbins v. Ohio Bur. of Motor Vehicles, 75 Ohio St. 3d 533, 664 N.E.2d 908 (1996).

[Foot Note 7] Cal.‚”Department of Motor Vehicles v. Superior Court, 58 Cal. App. 3d 936, 130 Cal. Rptr. 311 (1st Dist. 1976).

[Foot Note 8] N.Y.‚”City of Rochester v. Falk, 170 Misc. 238, 9 N.Y.S.2d 343 (City Ct. 1939).

[Foot Note 9] Kan.‚”State v. Finley, 198 Kan. 585, 426 P.2d 251 (1967), opinion withdrawn on other grounds on reh’g, 199 Kan. 615, 433 P.2d 414 (1967).

License fees, see ‚§‚§ 281to 283.

[Foot Note 10] N.D.‚”State ex rel. Hjelle v. A Motor Vehicle Described as a 1973 Brockway Tractor License No. 237342, Serial No. 79629, Trailer SN No. 75-2531-LB-150, 299 N.W.2d 557 (N.D. 1980).

Nonfundamental right

Va.‚”Walton v. Com., 255 Va. 422, 497 S.E.2d 869 (1998).

[Foot Note 11] Pa.‚”Com., Dept. of Transp., Bureau of Traffic Safety v. Quinlan, 47 Pa. Commw. 214, 408 A.2d 173 (1979).

[Foot Note 12] W.Va.‚”Abshire v. Cline, 193 W. Va. 180, 455 S.E.2d 549 (1995).

Substantial right

N.Y.‚”Pringle v. Wolfe, 88 N.Y.2d 426, 646 N.Y.S.2d 82, 668 N.E.2d 1376 (1996).
Real value

N.Y.‚”Schutt v. MacDuff, 205 Misc. 43, 127 N.Y.S.2d 116 (Sup 1954).

[Foot Note 13] N.Y.‚”People v. Emmanuel, 82 Misc. 2d 298, 368 N.Y.S.2d 773 (City Crim. Ct. 1975).

Substantial property interest that may not be deprived without due process of law

N.Y.‚”Pringle v. Wolfe, 88 N.Y.2d 426, 646 N.Y.S.2d 82, 668 N.E.2d 1376 (1996).
Basis of change in view from privilege to vested property right

N.Y.‚”People v. McAnarney, 28 Misc. 2d 778, 210 N.Y.S.2d 340 (County Ct. 1961).
END OF SECTION

60 C.J.S. Motor Vehicles ⤠260

Corpus Juris Secundum
Motor Vehicles
By John Bourdeau, J.D., Paul Coltoff, J.D., Edward K. Esping, J.D., of Professional Publishing Associates, Inc., John R. Kennel, J.D. of the staff of the National Legal Research Group, Inc., Sonja Larsen, J.D., Lucas Martin, J.D., Thomas Muskus, J.D., Charles Nagy, J.D., Carmela Pellegrino, J.D., Eric C. Surette, J.D., Susan L. Thomas, J.D., of Professional Publishing Associates, Inc.
V. License and Regulation of Drivers or Chauffeurs
A. Control and Regulation
2. Power to License

Topic Summary‚  Correlation Table

⤠260. State

Within constitutional limits, a state legislature may require drivers of motor vehicles on the public highways to be licensed and may impose reasonable conditions under which the license is to be issued.
The granting or withholding of licenses to operators of motor vehicles is a method of exercise of the state’s regulatory power over public highways.[Foot Note 1] The state legislature, under this power, has control of the licensing of those who, as chauffeurs or operators, drive such vehicles.[Foot Note 2] In the absence of constitutional restrictions, it may require that, before a person is entitled to operate or drive a motor vehicle upon the public highways, he or she must obtain a license as a chauffeur or operator and pay a prescribed license fee.[Foot Note 3]

In the exercise of this power, the legislature may classify the persons to whom the prescribed regulations will apply, provided such classification is not unreasonable and arbitrary.[Foot Note 4] Thus, the legislature may reasonably distinguish between individuals on the basis of maturity and judgment, physical capacity or ability, and similar matters which would affect the competency of a person to safely operate a motor vehicle upon the highway.[Foot Note 5] The state may prescribe the conditions under which the privilege of operating such vehicles may be granted[Foot Note 6] and exercised.[Foot Note 7] The legislature may reserve this power exclusively to the state[Foot Note 8] in order to establish, throughout the state, a uniform system regarding the licensing of chauffeurs and operators.[Foot Note 9] The legislature may also vest exclusive authority to issue licenses in a state board or commission.[Foot Note 10] Additionally, a legislature may be authorized to enact a statutory provision granting state courts the right to issue judicial driving permits.[Foot Note 11]
[Foot Note 1] N.C.‚”Smith v. Walsh, 34 N.C. App. 287, 238 S.E.2d 157 (1977).

Purpose

Ohio‚”City of Kettering v. Baker, 42 Ohio St. 2d 351, 71 Ohio Op. 2d 322, 328 N.E.2d 805 (1975).

[Foot Note 2] Mich.‚”Nicholas v. Secretary of State, 74 Mich. App. 64, 253 N.W.2d 662 (1977).

[Foot Note 3] U.S.‚”Wood v. Wm. B. Reilly & Co., 40 F. Supp. 507 (N.D. Ga. 1941).

Persons subject to license regulations, generally, see ‚§‚§ 262to 264.

License fees, generally, see ‚§‚§ 281to 283.

[Foot Note 4] Cal.‚”Ex parte Stork, 167 Cal. 294, 139 P. 684 (1914).

Taxicab license

Wash.‚”Tarver v. City Commission In and For City of Bremerton, 72 Wash. 2d 726, 435 P.2d 531 (1967).

[Foot Note 5] Wash.‚”State v. Scheffel, 82 Wash. 2d 872, 514 P.2d 1052 (1973).

Qualifications or eligibility for license, generally, see ‚§‚§ 268to 271.

[Foot Note 6] S.D.‚”Blow v. Commissioner of Motor Vehicles, 83 S.D. 628, 164 N.W.2d 351 (1969).

Reasonable regulation

U.S.‚”Quetawki v. Prentice, 303 F. Supp. 737 (D.N.M. 1968).

[Foot Note 7] N.Y.‚”People v. Frank, 61 Misc. 2d 450, 305 N.Y.S.2d 940 (Sup 1969).

[Foot Note 8] Tex.‚”Ball v. City of McKinney, 286 S.W. 341 (Tex. Civ. App. Dallas 1926), writ refused, (Nov. 10, 1926).

[Foot Note 9] N.Y.‚”Boord v. Wallander, 195 Misc. 557, 89 N.Y.S.2d 796 (Sup 1949), judgment modified on other grounds, 277 A.D. 253, 98 N.Y.S.2d 1 (1st Dep’t 1950), judgment aff’d on other grounds, 302 N.Y. 890, 100 N.E.2d 177 (1951).

[Foot Note 10] Neb.‚”Johnston v. Department of Motor Vehicles, 190 Neb. 606, 212 N.W.2d 342 (1973).

Duty as to medically suspect drivers

La.‚”Fowler v. Roberts, 526 So. 2d 266 (La. Ct. App. 2d Cir. 1988), writ denied, 531 So. 2d 278 (La. 1988) and writ granted, 531 So. 2d 257 (La. 1988) and judgment aff’d, 556 So. 2d 1 (La. 1989).
Control over other governmental agencies

Cal.‚”Yeoman v. Department of Motor Vehicles, 273 Cal. App. 2d 71, 78 Cal. Rptr. 251 (4th Dist. 1969).

[Foot Note 11] Ill.‚”People v. Inghram, 118 Ill. 2d 140, 113 Ill. Dec. 65, 514 N.E.2d 977 (1987).
END OF SECTION
60 C.J.S. Motor Vehicles V Refs.

Corpus Juris Secundum

Motor Vehicles
By John Bourdeau, J.D., Paul Coltoff, J.D., Edward K. Esping, J.D., of Professional Publishing Associates, Inc., John R. Kennel, J.D. of the staff of the National Legal Research Group, Inc., Sonja Larsen, J.D., Lucas Martin, J.D., Thomas Muskus, J.D., Charles Nagy, J.D., Carmela Pellegrino, J.D., Eric C. Surette, J.D., Susan L. Thomas, J.D., of Professional Publishing Associates, Inc.
V. License and Regulation of Drivers or Chauffeurs

Topic Summary‚  Correlation Table

Research References
Drinking/Driving Litigation Criminal and Civil (2d ed.) (DRNKDRIVING)

A.L.R. Library

West’s A.L.R. Digest, AutomobilesKey Symbol129 to 145
A.L.R. Index: Automobiles and Highway Traffic; Certificates of Title; Driver’s Licenses; Driving While Under the Influence of Drugs; Guest Statute; Passengers; Pedestrians; Reckless Driving; Speed and Speeding; Traffic Offenses and Violations
Denial Of Accused’s Request For Initial Contact With Attorney‚”Drunk Driving Cases, 109 A.L.R. 5th 611
Admissibility, In Motor Vehicle License Suspension Proceedings, Of Evidence Obtained By Unlawful Search And Seizure, 23 A.L.R. 5th 108
Validity And Application Of Statute Or Regulation Authorizing Revocation Or Suspension Of Driver’s License For Reason Unrelated To Use Of, Or Ability To Operate, Motor Vehicle, 18 A.L.R. 5th 542
Automobiles: Necessity Or Emergency As Defense In Prosecution For Driving Without Operator’s License Or While License Is Suspended, 7 A.L.R. 5th 73
Validity, Construction, Application, And Effect Of Statute Requiring Conditions, In Addition To Expiration Of Time, For Reinstatement Of Suspended Or Revoked Driver’s License, 2 A.L.R. 5th 725
Automobiles: Validity And Construction Of Legislation Authorizing Revocation Or Suspension Of Operator’s License For ‚“Habitual‚, ‚“Persistent‚, Or ‚“Frequent‚ Violations Of Traffic Regulations, 48 A.L.R. 4th 367
Construction And Effect Of Statutes Which Make Parent, Custodian, Or Other Person Signing Minor’s Application For Vehicle Operator’s License Liable For Licensee’s Negligence Or Willful Misconduct, 45 A.L.R. 4th 87

Treatises and Practice Aids

Nichols Drinking/Driving Litigation: Criminal and Civil (2d ed.) ‚§‚§ 7:1 to 7:25, 8:1 to 8:5, 9:14, 9:27, 11:1, 11:16 to 11:19, 11:30, 11:37

END OF SECTION
60 C.J.S. Motor Vehicles ⤠263

Corpus Juris Secundum
Motor Vehicles
By John Bourdeau, J.D., Paul Coltoff, J.D., Edward K. Esping, J.D., of Professional Publishing Associates, Inc., John R. Kennel, J.D. of the staff of the National Legal Research Group, Inc., Sonja Larsen, J.D., Lucas Martin, J.D., Thomas Muskus, J.D., Charles Nagy, J.D., Carmela Pellegrino, J.D., Eric C. Surette, J.D., Susan L. Thomas, J.D., of Professional Publishing Associates, Inc.
V. License and Regulation of Drivers or Chauffeurs
A. Control and Regulation
3. Persons Subject to License Regulations
a. In General

Topic Summary‚  Correlation Table

⤠263. Chauffeur or operator
AutomobilesKey Symbol129, 130, 132 to 137
A distinction is sometimes recognized between an operator and a chauffeur, as “chauffeur” often refers to one who is paid for driving an automobile.
In some jurisdictions, a distinction is made between a chauffeur and an operator. An operator is any person, other than a chauffeur, who operates or drives a motor vehicle.[Foot Note 1] A person need not be a chauffeur in order to secure a chauffeur’s license.[Foot Note 2] The fact that a driver holds such a license does not necessarily make such driver a chauffeur, unless he or she receives pay for the services.[Foot Note 3] Therefore, one who holds a chauffeur’s license, but is not a chauffeur, and who drives upon the highway may be just an operator.[Foot Note 4]

The term chauffeur has a general meaning, as well as a restrictive meaning.[Foot Note 5] In the general sense, a chauffeur is one who operates and propels,[Foot Note 6] or drives and operates,[Foot Note 7] or manages the running of,[Foot Note 8] an automobile. In a more restricted sense, a chauffeur is a person who drives an automobile for hire.[Foot Note 9] Chauffeur may also have different meanings, dependent on the terms of the statutory provision in which it appears.[Foot Note 10] As used in regulations requiring a person who desires to operate a motor vehicle as a chauffeur, or as a paid operator, first to obtain a chauffeur’s or driver’s license, it means a paid operator or employee, that is, a person who is employed and paid by the owner of a motor vehicle to drive and attend to the car.[Foot Note 11] In such case, the term chauffeur does not include operators who are not employed and paid for operating the motor vehicle.[Foot Note 12] Moreover, it does not include an employee who receives his or her compensation for services rendered, other than the operation of motor vehicles, although in performing such services he or she may incidentally operate a motor vehicle.[Foot Note 13] An employee of a public utility, who incidentally uses a motor vehicle in his or her business of repair, is not a chauffeur, and is not required to obtain a chauffeur’s license.[Foot Note 14] There is, however, authority to the contrary.[Foot Note 15]

Owner as driver.

An owner of a motor vehicle who has obtained an operator’s license may not, unless otherwise permitted, drive his or her vehicle as a public service vehicle for hire without a chauffeur’s license.[Foot Note 16] An owner who acts as an independent contractor in the operation of his or her vehicle is not, however, required to take out a chauffeur’s license.[Foot Note 17] This includes a person who, in delivering goods for one person, drives a motor vehicle which he or she has borrowed from a third person.[Foot Note 18]
[Foot Note 1] Cal.‚”Sogawa v. Department of Motor Vehicles, 100 Cal. App. 2d 181, 223 P.2d 269 (2d Dist. 1950).

[Foot Note 2] Cal.‚”Sogawa v. Department of Motor Vehicles, 100 Cal. App. 2d 181, 223 P.2d 269 (2d Dist. 1950).

[Foot Note 3] Cal.‚”Sogawa v. Department of Motor Vehicles, 100 Cal. App. 2d 181, 223 P.2d 269 (2d Dist. 1950).

Whether driver is chauffeur dependent on terms of applicable statutory provision, see ⤠263.

[Foot Note 4] Cal.‚”Sogawa v. Department of Motor Vehicles, 100 Cal. App. 2d 181, 223 P.2d 269 (2d Dist. 1950).

[Foot Note 5] La.‚”Day v. Bush, 18 La. App. 682, 139 So. 42 (2d Cir. 1932).

[Foot Note 6] Mo.‚”State v. Swagerty, 203 Mo. 517, 102 S.W. 483 (1907).

[Foot Note 7] Ill.‚”Christy v. Elliott, 216 Ill. 31, 74 N.E. 1035 (1905).

[Foot Note 8] Neb.‚”Woodring v. Commercial Cas. Ins. Co. of Newark, N.J., 122 Neb. 734, 241 N.W. 285 (1932).

[Foot Note 9] Neb.‚”Woodring v. Commercial Cas. Ins. Co. of Newark, N.J., 122 Neb. 734, 241 N.W. 285 (1932).

[Foot Note 10] Ala.‚”Turner v. State, 226 Ala. 269, 146 So. 601 (1933).

Uniformed patrolmen not chauffeurs

Mo.‚”State ex rel. Beach v. Beach, 325 Mo. 175, 28 S.W.2d 105 (1930).
American soldier not chauffeur

Tex.‚”American Automobile Ins. Co. v. Struwe, 218 S.W. 534 (Tex. Civ. App. San Antonio 1920), writ refused, (Apr. 6, 1921).

[Foot Note 11] U.S.‚”State of Md. for Use of Weaver v. O’Brien, 140 F. Supp. 306 (D. Md. 1956).

Test

U.S.‚”Maryland Cas. Co. v. Cronholm, 32 F. Supp. 375 (S.D. Tex. 1940), judgment aff’d on other grounds, 116 F.2d 494 (C.C.A. 5th Cir. 1940).

[Foot Note 12] Ky.‚”Winslow v. Everson, 221 Ky. 430, 298 S.W. 1084 (1927).

[Foot Note 13] W.Va.‚”State v. Wimmer, 117 W. Va. 498, 186 S.E. 133, 105 A.L.R. 67 (1936).

Services of son

Cal.‚”Hunton v. California Portland Cement Co., 50 Cal. App. 2d 684, 123 P.2d 947 (4th Dist. 1942).

[Foot Note 14] N.Y.‚”People v. Dennis, 166 N.Y.S. 318 (County Ct. 1915).

[Foot Note 15] N.Y.‚”People v. Fulton, 96 Misc. 663, 162 N.Y.S. 125 (County Ct. 1916).

[Foot Note 16] Mo.‚”Stack v. General Baking Co., 283 Mo. 396, 223 S.W. 89 (1920).

Chauffeur defined

Tex.‚”Peniche v. Aeromexico, 580 S.W.2d 152 (Tex. Civ. App. Houston 1st Dist. 1979).

[Foot Note 17] N.Y.‚”People v. Ritter, 120 Misc. 852, 200 N.Y.S. 816 (County Ct. 1922).

[Foot Note 18] Ind.‚”A. E. Norris Coal Co. v. Jackson, 80 Ind. App. 423, 141 N.E. 227 (Div. 1 1923).

CJS MOTORVEH ⤠263

END OF SECTION

 

NOTES ON POLICE POWER

Corpus Juris Secundum

Constitutional Law
by Francis Amendola, J.D.; John Bourdeau, J.D.; Paul M. Coltoff, J.D.; John Dvorske, J.D.; John Glenn, J.D.; Glenda K. Harnad, J.D., of the staff of the National Legal Research Group, Inc.; John Kennel, J. D., of the staff of the National Legal Research Group, Inc.; Sonja Larsen, J.D.; Stephen Lease, J.D.; Jack K. Levin, J.D.; Richard J. Link, J.D.; Lucas Martin, J.D.; Thomas Muskus, J.D.; Karl Oakes, J.D.; Kimberly Simmons, J.D.; Eric C. Surette, J.D.; Carmela Pellegrino, J.D.; Barbara Van Arsdale, J.D.; Elizabeth Williams, J. D.; Lisa Zakolski, J.D.
VIII. Police Power
A. In General

Topic Summary‚  References

‚§‚ ‚  610. Nature of power

Constitutional Law‚ ‚  81

The police power is a governmental function, an inherent attribute of sovereignty, which exists without any reservation in the constitution as an essential element in all orderly governments.

The police power is a governmental function,[FN1] an inherent attribute of sovereignty,[FN2] and the greatest and most powerful attribute of government.[FN3] Although the basis of the police power lies in the constitution which regards the public welfare, safety, and health of the citizens of the state,[FN4] and although it may be given to the people of the state by the constitution,[FN5] the power exists without any reservation in the constitution,[FN6] being founded on the duty of the state to protect the health, safety, and welfare of its citizens.[FN7]

The police power, in its nature, is very broad and comprehensive,[FN8] and the laws enacted for the purpose of regulation thereunder may be impolitic, harsh, and oppressive.[FN9] It corresponds to the right of self-preservation in the individual,[FN10] and is an essential element in all orderly governments,[FN11] because it is necessary to the proper maintenance of the government and the general welfare of the community.[FN12]

The power comprehends reasonable preventative measures no less than the punishment of perpetrated offenses,[FN13] and it may act to prevent apprehended dangers as well as to control those already existing.[FN14] The police power depends on the security of social order, the life and health of the citizen, the comfort of an existence in a thickly populated community, the enjoyment of private and social life, and the beneficial use of property, and it has been said to be the very foundation on which our social system rests.[FN15] It has for its object the improvement of economic[FN16] and social conditions affecting the community at large and collectively with a view of bringing about “the greatest good of the greatest number.”[FN17]

The constitution presupposes the existence of the police power and is to be construed with reference to that fact,[FN18] and police regulations presuppose conditions which, unless controlled, will operate to a public disadvantage.[FN19]

[FN1] U.S.‚”Aldens, Inc. v. LaFollette, 552 F.2d 745 (7th Cir. 1977).

Ala.‚”City of Decatur v. Robinson, 251 Ala. 99, 36 So. 2d 673 (1948).

[FN2] U.S.‚”City of El Paso v. Simmons, 379 U.S. 497, 85 S. Ct. 577, 13 L. Ed. 2d 446 (1965).

Cal.‚”Pleasant Hill Bayshore Disposal, Inc. v. Chip-It Recycling, Inc., 91 Cal. App. 4th 678, 110 Cal. Rptr. 2d 708 (1st Dist. 2001), as modified on denial of reh’g, (Sept. 13, 2001).

Colo.‚”CF & I Steel, L.P. v. United Steel Workers of America (USWA), 74 P.3d 513 (Colo. Ct. App. 2003).

Okla.‚”Fine Airport Parking, Inc. v. City of Tulsa, 2003 OK 27, 71 P.3d 5 (Okla. 2003).

Exercise not dependent on emergency

Police power is permanent right of sovereignty, and its exercise is not dependent on emergency.

N.J.‚”In re North Jersey Title Ins. Co., 120 N.J. Eq. 148, 184 A. 420 (Ch. 1936), aff’d, 120 N.J. Eq. 608, 187 A. 146 (Ct. Err. & App. 1936).

[FN3] Pa.‚”Com. v. Widovich, 295 Pa. 311, 145 A. 295 (1929).

[FN4] U.S.‚”Ziffrin, Inc. v. Martin, 24 F. Supp. 924 (E.D. Ky. 1938), aff’d, 308 U.S. 132, 60 S. Ct. 163, 84 L. Ed. 128 (1939) (abrogated on other grounds by, Granholm v. Heald, 125 S. Ct. 1885, 161 L. Ed. 2d 796 (U.S. 2005)).

[FN5] Vt.‚”Sowma v. Parker, 112 Vt. 241, 22 A.2d 513 (1941).

[FN6] Ohio‚”Vincent v. Elyria Bd. of Ed., 7 Ohio App. 2d 58, 36 Ohio Op. 2d 151, 218 N.E.2d 764 (9th Dist. Lorain County 1966).

Tex.‚”Martin v. Wholesome Dairy, Inc., 437 S.W.2d 586 (Tex. Civ. App. Austin 1969), writ refused n.r.e., (June 25, 1969).

Wash.‚”Reesman v. State, 74 Wash. 2d 646, 445 P.2d 1004 (1968).

Not referable to any single provision

Md.‚”Smith v. Higinbothom, 187 Md. 115, 48 A.2d 754 (1946).

[FN7] Md.‚”Linkus v. Maryland State Bd. of Heating Ventilation, Air-Conditioning and Refrigeration Contractors, 114 Md. App. 262, 689 A.2d 1254 (1997).

N.M.‚”In re McCain, 84 N.M. 657, 506 P.2d 1204 (1973).

Tex.‚”Jefco, Inc. v. Lewis, 520 S.W.2d 915 (Tex. Civ. App. Austin 1975), writ refused n.r.e., (July 23, 1975).

Duty to act

(1) Legislature has a duty to enact laws providing for general welfare and safety of people within state.

Ind.‚”State ex rel. Mavity v. Tyndall, 225 Ind. 360, 74 N.E.2d 914 (1947).

(2) There is no constitutional provision which imposes a duty on a state to provide services to its citizens.

U.S.‚”New York State Ass’n for Retarded Children, Inc. v. Rockefeller, 357 F. Supp. 752 (E.D. N.Y. 1973).

Public necessity

Police power is founded in public necessity, which justifies its exercise.

Conn.‚”State v. Heller, 123 Conn. 492, 196 A. 337 (1937).

[FN8] N.Y.‚”Dobrzenski v. Village of Hamburg, 277 A.D.2d 1005, 715 N.Y.S.2d 819 (4th Dep’t 2000).

Okla.‚”State v. Nevins, 1980 OK CR 30, 611 P.2d 251 (Okla. Crim. App. 1980).

W. Va.‚”State ex rel. Barker v. Manchin, 167 W. Va. 155, 279 S.E.2d 622 (1981).

Almost infinite variety of subjects embraced

U.S.‚”Universal Interpretive Shuttle Corp. v. Washington Metropolitan Area Transit Commission, 393 U.S. 186, 89 S. Ct. 354, 21 L. Ed. 2d 334 (1968).

[FN9] Cal.‚”D’Amico v. Brock, 122 Cal. App. 2d 63, 264 P.2d 120 (3d Dist. 1953).

Iowa‚”Jacobs v. City of Chariton, 245 Iowa 1378, 65 N.W.2d 561 (1954).

W.Va.‚”State ex rel. Morris v. West Virginia Racing Commission, 133 W. Va. 179, 55 S.E.2d 263 (1949).

Strict liability

In exercise of power, state may impose liability without fault.

Ala.‚”Walker v. State, 356 So. 2d 672 (Ala. 1977).

[FN10] U.S.‚”Panhandle Eastern Pipe Line Co. v. State Highway Commission of Kansas, 294 U.S. 613, 55 S. Ct. 563, 79 L. Ed. 1090 (1935).

Ala.‚”Jones v. State, 56 Ala. App. 280, 321 So. 2d 247 (Crim. App. 1975).

N.Y.‚”DeLury v. City of New York, 51 A.D.2d 288, 381 N.Y.S.2d 236 (1st Dep’t 1976).

[FN11] U.S.‚”Comtronics, Inc. v. Puerto Rico Telephone Co., 409 F. Supp. 800 (D.P.R. 1975), judgment aff’d, 553 F.2d 701 (1st Cir. 1977).

Ky.‚”Roe v. Com., 405 S.W.2d 25 (Ky. 1966).

Wash.‚”Spokane County v. Valu-Mart, Inc., 69 Wash. 2d 712, 419 P.2d 993 (1966).

Law of necessity

Police power is law of necessity.

N.J.‚”Jamouneau v. Harner, 16 N.J. 500, 109 A.2d 640 (1954).

[FN12] Ariz.‚”Transamerica Title Ins. Co. v. City of Tucson, 23 Ariz. App. 385, 533 P.2d 693 (Div. 2 1975).

Tenn.‚”H & L Messengers, Inc. v. City of Brentwood, 577 S.W.2d 444, 12 A.L.R.4th 835 (Tenn. 1979).

Tex.‚”Texas State Bd. of Pharmacy v. Gibson’s Discount Center, Inc., 541 S.W.2d 884 (Tex. Civ. App. Austin 1976), writ refused n.r.e., (Mar. 9, 1977).

[FN13] U.S.‚”Jung v. City of Winona, 71 F. Supp. 558 (D. Minn. 1947).

N.J.‚”State v. Gaynor, 119 N.J.L. 582, 197 A. 360 (N.J. Ct. Err. & App. 1938).

Assumptions unprovable or unproved

(1) Unprovable assumption may be acted on by states in areas of public control.

U.S.‚”Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S. Ct. 2628, 37 L. Ed. 2d 446 (1973).

(2) Legislatures properly may rely on scientifically unproven assumptions both in regulation of commercial and business transactions and for protection of broad social interests in order and morality.

D.C.‚”U. S. v. Moses, 339 A.2d 46 (D.C. 1975).

Blocking evasive techniques

In area of regulation, statute may push beyond debatable limits in order to block evasive techniques.

Cal.‚”Sacramento Newspaper Guild v. Sacramento County Bd. of Sup’rs, 263 Cal. App. 2d 41, 69 Cal. Rptr. 480 (3d Dist. 1968).

[FN14] U.S.‚”Gitlow v. People of State of New York, 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138 (1925).

Colo.‚”People v. Hoehl, 193 Colo. 557, 568 P.2d 484 (1977).

N.Y.‚”McCallin v. Walsh, 64 A.D.2d 46, 407 N.Y.S.2d 852 (1st Dep’t 1978), order aff’d, 46 N.Y.2d 808, 413 N.Y.S.2d 922, 386 N.E.2d 833 (1978).

Delayed impact

Authority of state to control activities of its citizens is not limited to activities which have a present and immediate impact on public health or welfare.

Alaska‚”Ravin v. State, 537 P.2d 494 (Alaska 1975).

Possession of devices or products

Mere possession of dangerous or deleterious devices or products may be forbidden by state under its police powers.

D.C.‚”Smith v. District of Columbia, 436 A.2d 53 (D.C. 1981).

[FN15] Ga.‚”De Berry v. City of La Grange, 62 Ga. App. 74, 8 S.E.2d 146 (1940).

N.C.‚”State v. McGee, 237 N.C. 633, 75 S.E.2d 783 (1953).

Va.‚”Mumpower v. Housing Authority of City of Bristol, 176 Va. 426, 11 S.E.2d 732 (1940).

Giving up rights for public benefit

Power to pass laws regulating persons and property stems from theory that when persons choose to live in groups they must give up some individual freedom for good of group.

La.‚”City of Shreveport v. Curry, 357 So. 2d 1078 (La. 1978).

[FN16] Wis.‚”Gross v. Woodman’s Food Market, Inc., 259 Wis. 2d 181, 2002 WI App 295, 655 N.W.2d 718 (Ct. App. 2002), review denied, 2003 WI 32, 260 Wis. 2d 752, 661 N.W.2d 100 (2003).

[FN17] Md.‚”Maryland Coal & Realty Co. v. Bureau of Mines of State, 193 Md. 627, 69 A.2d 471 (1949).

Mich.‚”People v. Sell, 310 Mich. 305, 17 N.W.2d 193 (1945).

N.C.‚”Morris v. Holshouser, 220 N.C. 293, 17 S.E.2d 115, 137 A.L.R. 733 (1941).

Interest of public paramount

Fla.‚”Egan v. City of Miami, 130 Fla. 465, 178 So. 132 (1938).

[FN18] Fla.‚”McInerney v. Ervin, 46 So. 2d 458 (Fla. 1950).

La.‚”City of Baton Rouge v. Ross, 654 So. 2d 1311 (La. 1995).

N.D.‚”State ex rel. City of Minot v. Gronna, 79 N.D. 673, 59 N.W.2d 514 (1953).

[FN19] Ky.‚”Commonwealth for Use and Ben. of City of Wilmore v. McCray, 250 Ky. 182, 61 S.W.2d 1043 (1933).

Utah‚”State v. Packer Corporation, 77 Utah 500, 297 P. 1013 (1931).

END OF SECTION

CJS CONSTLAW ‚§‚  610

Corpus Juris Secundum

Constitutional Law
by Francis Amendola, J.D.; John Bourdeau, J.D.; Paul M. Coltoff, J.D.; John Dvorske, J.D.; John Glenn, J.D.; Glenda K. Harnad, J.D., of the staff of the National Legal Research Group, Inc.; John Kennel, J. D., of the staff of the National Legal Research Group, Inc.; Sonja Larsen, J.D.; Stephen Lease, J.D.; Jack K. Levin, J.D.; Richard J. Link, J.D.; Lucas Martin, J.D.; Thomas Muskus, J.D.; Karl Oakes, J.D.; Kimberly Simmons, J.D.; Eric C. Surette, J.D.; Carmela Pellegrino, J.D.; Barbara Van Arsdale, J.D.; Elizabeth Williams, J. D.; Lisa Zakolski, J.D.
XV. Privileges and Immunities of Citizens and Related Matters
C. Denial of Privileges and Immunities
2. Police Power and Regulation

Topic Summary‚  References

‚§‚ ‚  1067. State’s exercise of police power

Constitutional Law‚ ‚  206(1), 207(1), 207(6)

While a state, in the exercise of its police power, may pass laws for the health, morals, safety, and general welfare of persons within its jurisdiction, such exercise of power must not discriminate arbitrarily between citizens.

Neither the guaranty contained in the original United States Constitution of the privileges and immunities of citizens of the several states, nor that contained in the Fourteenth Amendment, takes away or impairs the police power of the several states to pass reasonable laws for the promotion of the health, morals, safety, and general welfare of persons subject to their jurisdiction.[FN1] The privileges and immunities clause applies only to protect citizens of one state from discriminatory treatment in another state, and does not limit the state’s police power over its own citizens.[FN2]

It has been held that the privileges and immunities clauses have no application to statutes enacted in the exercise of that power.[FN3] On the other hand, it has been held that the police power is subject to the constitutional guaranty of equality of privilege,[FN4] and an exercise of the police power must not arbitrarily discriminate between citizens.[FN5] Nevertheless, the protections afforded by constitutional clauses protecting privileges and immunities of citizens are not absolute and will yield to reasonable exercise of state police powers.[FN6]

While in the matter of police regulation, the powers of the state are very broad, it cannot single out a corporation, any more than a natural person, and subject it to burdens which are not cast on others similarly situated, without contravening the limitations of the Fourteenth Amendment of the Federal Constitution.[FN7]

[FN1] U.S.‚”Sullivan v. Shaw, 6 F. Supp. 112 (S.D. Cal. 1934).

Fla.‚”Stephens v. Stickel, 146 Fla. 104, 200 So. 396 (1941).

Mo.‚”State ex rel. Becker v. Wellston Sewer Dist. of St. Louis County, 332 Mo. 547, 58 S.W.2d 988 (1933).

N.Y.‚”People ex rel. Bryant v. Zimmerman, 213 A.D. 414, 210 N.Y.S. 269 (4th Dep’t 1925), aff’d, 241 N.Y. 405, 150 N.E. 497, 43 A.L.R. 909 (1926), aff’d, 278 U.S. 63, 49 S. Ct. 61, 73 L. Ed. 184, 62 A.L.R. 785 (1928).

Or.‚”Daniels v. City of Portland, 124 Or. 677, 265 P. 790, 59 A.L.R. 512 (1928).

Tenn.‚”Mensi v. Walker, 160 Tenn. 468, 26 S.W.2d 132 (1930).

W.Va.‚”Tweel v. West Virginia Racing Commission, 138 W. Va. 531, 76 S.E.2d 874 (1953).

[FN2] Me.‚”State v. Hayes, 603 A.2d 869 (Me. 1992).

[FN3] Wash.‚”Frach v. Schoettler, 46 Wash. 2d 281, 280 P.2d 1038 (1955).

[FN4] N.C.‚”State v. Scoggin, 236 N.C. 1, 72 S.E.2d 97 (1952).

[FN5] Ind.‚”City of Richmond v. Dudley, 129 Ind. 112, 28 N.E. 312 (1891).

S.C.‚”Schloss Poster Advertising Co. v. City of Rock Hill, 190 S.C. 92, 2 S.E.2d 392 (1939).

[FN6] Mont.‚”State v. Barnes, 232 Mont. 405, 758 P.2d 264 (1988).

[FN7] U.S.‚”Southern Bell Tel. & Tel. Co. v. Town of Calhoun, 287 F. 381 (W.D. S.C. 1923).

END OF SECTION

CJS CONSTLAW ‚§‚  1067

Corpus Juris Secundum

Constitutional Law
by Francis Amendola, J.D.; John Bourdeau, J.D.; Paul M. Coltoff, J.D.; John Dvorske, J.D.; John Glenn, J.D.; Glenda K. Harnad, J.D., of the staff of the National Legal Research Group, Inc.; John Kennel, J. D., of the staff of the National Legal Research Group, Inc.; Sonja Larsen, J.D.; Stephen Lease, J.D.; Jack K. Levin, J.D.; Richard J. Link, J.D.; Lucas Martin, J.D.; Thomas Muskus, J.D.; Karl Oakes, J.D.; Kimberly Simmons, J.D.; Eric C. Surette, J.D.; Carmela Pellegrino, J.D.; Barbara Van Arsdale, J.D.; Elizabeth Williams, J. D.; Lisa Zakolski, J.D.
XVI. Equal Protection of the Laws
B. Nature and Scope of Prohibitions

Topic Summary‚  References

‚§‚ ‚  1115. Exercise of police power

Constitutional Law‚ ‚  212

The prohibition of the Fourteenth Amendment against denial of equal protection of the laws does not deprive the states, or the political subdivisions thereof, of their power, commonly called the police power, to pass laws for the protection of the public health, safety, welfare, or morals.

The prohibition of the Fourteenth Amendment against denial of equal protection of the laws does not deprive the states, or the political subdivisions thereof, of their power, commonly called the police power,[FN1] to pass laws for the protection of the public health, safety, welfare, or morals,[FN2] and indeed, the state has wide discretion to do so under the equal protection clause.[FN3] Furthermore, it does not interfere with the proper exercise of that power.[FN4]

However, according to the weight of authority, an exercise of the police power is subject to the constitutional limitation that no state shall deny the equal protection of the laws to any person within its jurisdiction;[FN5] and the Fourteenth Amendment invalidates enactments that are arbitrary, unreasonable, and unrelated to the public purpose sought to be attained.[FN6] In other words, equal protection requires that the exercise of police power be wholly free of unreason and arbitrariness.[FN7] It is necessary that a police regulation shall apply equally or uniformly to all persons similarly situated or within a class.[FN8] Thus, the lawmaking authority may, under its police power, enact regulations that are not all-embracing, and it may legislate with reference to degrees of evil and to situations in which the evil is demonstrably more harmful, without denying equal protection of the law;[FN9] but an exercise of the police power must not be discriminatory in operation.[FN10]

The equal protection clause of the Fourteenth Amendment to the Federal Constitution does not take from a state or municipal corporation the power to classify in the adoption of police laws or regulations,[FN11] but admits of the exercise of a wide or broad scope of discretion in that regard.[FN12]

[FN1] Del.‚”In re Auditorium, Inc., 46 Del. 430, 84 A.2d 598 (Super. Ct. 1951).

[FN2] Fla.‚”Florida League of Cities, Inc. v. Department of Environmental Regulation, 603 So. 2d 1363 (Fla. Dist. Ct. App. 1st Dist. 1992).

Ohio‚”St. Ann’s Hosp. v. Arnold, 109 Ohio App. 3d 562, 672 N.E.2d 743 (10th Dist. Franklin County 1996).

Pa.‚”Pennsylvania Turnpike Com’n v. Com., 855 A.2d 923 (Pa. Commw. Ct. 2004), as amended, (Aug. 4, 2004).

[FN3] U.S.‚”Lee v. State, 869 F. Supp. 1491 (D. Or. 1994).

Colo.‚”Buckley Powder Co. v. State, 70 P.3d 547 (Colo. Ct. App. 2002), cert. denied, 2003 WL 21222805 (Colo. 2003) and cert. denied, (May 27, 2003).

[FN4] U.S.‚”Lacoste v. Department of Conservation of State of Louisiana, 263 U.S. 545, 44 S. Ct. 186, 68 L. Ed. 437 (1924); Chambers v. Bachtel, 55 F.2d 851 (C.C.A. 5th Cir. 1932).

Kan.‚”Manzanares v. Bell, 214 Kan. 589, 522 P.2d 1291 (1974).

[FN5] U.S.‚”Oyama v. California, 332 U.S. 633, 68 S. Ct. 269, 92 L. Ed. 249 (1948); Szeto v. Louisiana State Bd. of Dentistry, 508 F. Supp. 268 (E.D. La. 1981).

Fla.‚”Junco v. State Bd. of Accountancy, 390 So. 2d 329 (Fla. 1980).

[FN6] Ill.‚”Rawlings v. Illinois Dept. of Law Enforcement, 73 Ill. App. 3d 267, 29 Ill. Dec. 333, 391 N.E.2d 758 (3d Dist. 1979).

[FN7] N.J.‚”515 Associates v. City of Newark, 132 N.J. 180, 623 A.2d 1366 (1993).

[FN8] U.S.‚”Alabama State Federation of Labor, Local Union No. 103, United Broth. of Carpenters and Joiners of America v. McAdory, 325 U.S. 450, 65 S. Ct. 1384, 89 L. Ed. 1725 (1945); Berry v. Arapahoe and Shoshone Tribes, 420 F. Supp. 934 (D. Wyo. 1976).

Cal.‚”Elysium Institute, Inc. v. County of Los Angeles, 232 Cal. App. 3d 408, 283 Cal. Rptr. 688 (2d Dist. 1991).

Neb.‚”Distinctive Printing and Packaging Co. v. Cox, 232 Neb. 846, 443 N.W.2d 566 (1989).

[FN9] Fla.‚”Pacheco v. Pacheco, 246 So. 2d 778 (Fla. 1971).

[FN10] U.S.‚”Shelley v. Kraemer, 334 U.S. 1, 68 S. Ct. 836, 92 L. Ed. 1161, 3 A.L.R.2d 441 (1948).

Ariz.‚”State v. Norcross, 26 Ariz. App. 115, 546 P.2d 840 (Div. 1 1976).

[FN11] U.S.‚”Morey v. Doud, 354 U.S. 457, 77 S. Ct. 1344, 1 L. Ed. 2d 1485 (1957) (overruled on other grounds by, City of New Orleans v. Dukes, 427 U.S. 297, 96 S. Ct. 2513, 49 L. Ed. 2d 511 (1976)); Queenside Hills Realty Co. v. Saxl, 328 U.S. 80, 66 S. Ct. 850, 90 L. Ed. 1096 (1946).

Tenn.‚”Wyatt v. A-Best Products Co., 924 S.W.2d 98 (Tenn. Ct. App. 1995), as modified on reh’g, (Dec. 28, 1995).

As to legislative classifications, generally, see ‚§‚  1110.

[FN12] U.S.‚”City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985); Morey v. Doud, 354 U.S. 457, 77 S. Ct. 1344, 1 L. Ed. 2d 1485 (1957) (overruled on other grounds by, City of New Orleans v. Dukes, 427 U.S. 297, 96 S. Ct. 2513, 49 L. Ed. 2d 511 (1976)); Alamo Rent-A-Car, Inc. v. Sarasota-Manatee Airport Authority, 825 F.2d 367 (11th Cir. 1987).

Ill.‚”People v. Toliver, 251 Ill. App. 3d 1092, 191 Ill. Dec. 290, 623 N.E.2d 880 (2d Dist. 1993).

Tenn.‚”Wyatt v. A-Best Products Co., 924 S.W.2d 98 (Tenn. Ct. App. 1995), as modified on reh’g, (Dec. 28, 1995).

END OF SECTION

CJS CONSTLAW ‚§‚  1115

Tagged , , ,

Disecting the Illinois Drivers License Law – in progress….

I will try to make this as simple as possible, but you will have to pay very close attention and abandon everything you have previously believed regarding drivers licenses. Despite what you believe about what you “think” should be done to regulate others who use their vehicle for personal transportation, keep in mind that the government has not been endowed with general authority in requiring people to apply for, and possess, licenses for their private actions. There are words which you will need to pay close attention to, and not assume you know the meaning, since they have been specifically defined in the statutes. Words such as, “resident”, “natural person”, “State”, “licensee”, “drive, “motor vehicle”…etc. Do not automatically assume the words have the same meaning as your everyday usage. Do not automatically assume the definitions apply to you.

So, what does a driver’s license do? Well, by definition a license is permission to do something that is otherwise illegal.

http://legal-dictionary.thefreedictionary.com/license – The permission granted by competent authority to exercise a certain privilege that, without such authorization, would constitute an illegal act, a Trespass or a tort. The certificate or the document itself that confers permission to engage in otherwise proscribed conduct.

Notice the word “privilege”. It is used throughout the statutes as well. You will often hear that “driving is a privilege”. In a sense, that is true, since driving is a specific activity and not necessarily what many of you do with your automobile.  Let’s look at what a privilege is:

http://legal-dictionary.thefreedictionary.com/privilege – privilege n. a special benefit, exemption from a duty, or immunity from penalty, given to a particular person, a group or a class of people.

So, if privileges apply to a particular group or class of people, who are they? Well, first we have to look at just “who” can be regulated and what they are doing. This will fall under the state’s “police power“. What is the “police power”? It is the inherent power of the State to legislate for the healty, safety, welfare, and morals of its citizens.  It is primarily limited to businesses or professional occupations. Keep this in mind because I’ll refer back to it later.

 There are essentially two types of “persons”, residents and non-residents. We will first look at residents. A resident is defined thusly:

(625 ILCS 5/1-173) (from Ch. 95 1/2, par. 1-173)
Sec. 1-173. Resident.
(a) Every natural person who resides in this state shall be deemed a resident of this State.
(b) In the case of a firm, copartnership or association, if the principal place of business of such firm, copartnership or association is located in the State of Illinois, then such firm, copartnership or association shall be deemed a resident of the State of Illinois.
(c) In the case of a corporation, if the corporation was incorporated under the laws of the State of Illinois or if the principal place of business of such corporation is in the State of Illinois, then such corporation shall be deemed a resident of the State of Illinois.
(Source: P.A. 76-1586.)

There are a couple of things to note. The use of the term “natural person” and “this State”. We know that corporations are considered persons under the law, and we assume that persons always includes people, but such is not the case. You must look at the object of the legislation and then at the definitions. A “person” may, in some cases depending on the legislation, mean only corporations. Likewise, “natural persons” to not mean only people. By the same token, “person” does not necessarily mean people. The Vehicle Code defines “person” as:

(625 ILCS 5/1-159) (from Ch. 95 1/2, par. 1-159)
Sec. 1-159. Person.
Every natural person, firm, copartnership, association or corporation.
(Source: P.A. 76-1586.)

So, regarding “persons”, we have reference to natural persons, and corporate entities. Seeing as how they are hanging their hat on “natural persons”, we need to investigate how that is used throughout other laws.

Here are a couple of examples:

Under former clause 5 of ¶1 of former chapter 1 (now this paragraph) providing that the word “person” or “persons,” as well as all words referring to or importing persons, might extend and be applied to bodies politic and corporate as well as individuals, a dram shop license might be issued to a corporation as well as an individual. People, on Inf. of Healy v. Heidelberg Garden Co., 1908, 84 N.E. 230, 233 Ill. 290. Intoxicating Liquors

The word “parties” in the Venue Act (see, now, ch. 110, ¶501 et seq.) refers to and imports persons and includes corporations. Commercial Ins. Co. v. Mehlman, 1868, 48 Ill. 313, 95 Am.Dec. 543.

Corporations are included in the word “person” in the attachment law. Mineral Point R. Co. v. Keep, 1859, 22 Ill. 9, 74 Am.Dec. 124.

The term “natural person” or “natural persons,” used in the Banking Act (ch. 16 1/2 , ¶101 et seq.), extends to and applies to “bodies politic” and “corporate.” Fidelity Inv. Assn. v. Emmerson, 1924, 235 Ill.App. 518, reversed on other grounds 318 Ill. 548, 149 N.E. 530.

The word “company” in an act relating to the right to operate a street railway could not, under ¶1 of former chapter 1 (now this paragraph) be construed to include a natural person. Goddard v. Chicago & N.W. Ry. Co., 1903, 104 Ill.App. 526, affirmed 202 Ill. 362, 66 N.E. 1066.

The word “person” authorizes a recovery upon the complaint of a body politic or corporate. Durbin v. People, 1894, 54 Ill.App. 101.

A city was a “person” within Workmen’s Compensation Act, § 3 (ch. 48, ¶136, repealed), in view of ¶1 of former chapter 1 (now this paragraph). Smith v. City of Hamilton, 1924, 231 Ill.App. 482.

So, based on the foregoing, we cannot assume that a “natural person” necessarily means people in-general. It is reasonable to conclude that a natural person is a human being, but a human being acting as a representative for a corporation or having a duty as an officer of a corporation. Since you cannot impose a duty or obligation upon a incorporeal entity, like a corporation, you can upon an individual who is charged with executing the by-laws of the corpration. There must be a flesh-and-blood individual responsible for carrying forth the operations of the corporation.

If “persons” and “natural persons” may mean people, cities, corporations, how do we determine who is bound by the law? Let’s look at the definition further. A resident is distinguished by two means, the “natural person” and the “un-natural person”, aka, corporation. This illustrates what I have just explained above. However, pay attention to the location of residency. Natural persons reside in “this State” and corporations reside in the State of Illinois.

Natural Persons – (a) Every natural person who resides in this state shall be deemed a resident of this State.

Corporations not incorporated in the State of Illinois – (b) In the case of a firm, copartnership or association, if the principal place of business of such firm, copartnership or association is located in the State of Illinois, then such firm, copartnership or association shall be deemed a resident of the State of Illinois.
Corporations Incorporated in the State of Illinois – (c) In the case of a corporation, if the corporation was incorporated under the laws of the State of Illinois or if the principal place of business of such corporation is in the State of Illinois, then such corporation shall be deemed a resident of the State of Illinois

There are two things to note. Notice how in (a), there are two spellings of “this state”, one being with a lower case (s) state, and the other with an upper case (S) State. This is no accident, and when read actually makes no apparent sense. Here are a few ways to possibly interpret that phrase:

(a) Every human being who resides in illinois shall be deemed to be a resident of Illinois

(a) Every human being having a duty or obligation as an officer or agent for a corporation who resides in illinois shall be deemed to be a resident of Illinois

(a) Every human being having a duty or obligation as an officer or agent for a corporation who resides in this state shall be deemed to be a resident of Illinois

(a) Every human being who resides in Illinois shall be deemed to be a resident of this State.

(a) Every human being who resides in this state shall be deemed to be a resident of Illinois

As you can see, it really makes no sense if “this state” and “this State” means the State of Illinois. So, what is “this (s)(S)tate”? In the case of natural persons, it is residency. In the case of corporations, it is their place of business or incorporation. If it applies to corporations the phrase “State of Illinois” is used, and in the case of natural persons it is “this state”.

We must determine what exactly a “state”/”State” is. I will prove that there is a state, other than the State of Illinois, which is used for the Illinois Vehicle Code. The Illinois Statutes define “State” differently in certain statutes.

(5 ILCS 70/1.14) (from Ch. 1, par. 1015)
 Sec. 1.14. “State,” when applied to different parts of the United States, may be construed to include the District of Columbia and the several territories, and the words “United States” may be construed to include the said district and territories.
(Source: Laws 1945, p. 1717.)

5 ILCS 70/1.14 – § 1.14. “State,” when applied to different parts of the United States, may be construed to include the District of Columbia and the several territories, and the words “United States” may be construed to include the said district and territories.

1. District of Columbia – The District of Columbia is a “state” within the proviso of ch. 110 1/2 , ¶6 (see, now, ch. 111, ¶5506), permitting certified public accountants holding certificates issued under laws of another “state” to practice in Illinois. Gore v. National Ass’n of Certified Public Accountants, 1924, 231 Ill.App. 38., 5 I.L.C.S. 70/1.14, IL ST CH 5 § 70/1.14

There are parts of the Illinois Compiled Statutes which have gone to lenghts to actually define “State”, or “this State”.

AIR TRANSPORTATION
(620 ILCS 5/) Illinois Aeronautics Act.
(620 ILCS 5/7) (from Ch. 15 1/2, par. 22.7)
http://033ffdb.netsolhost.com/mark/ilcs/ilcs3d5c4.html?ActID=1803&ChapterID=48
Sec. 7. “State” or “this State” means the State of Illinois; and “Department” means the Division of Aeronautics of the Department of Transportation of this State.
(Source: P.A. 81-840.)

We can infer from the use of state in other statutes that there is a difference between Illinois, and parts of the Unites States; meaning that things other than the several 50 states can be States. So far, we have determined that persons can be people or legal entities. We have also determined that, as far as the Vehicle Code is concerned, when referring to persons, the definition specifies “natural persons”, and that “natural persons” can be both people and legal enties. As an example, let’s look at another part of the Transporation Statutes, in this case, Roads and Bridges, and see how they define a “person”:

ROADS AND BRIDGES
(605 ILCS 5/) Illinois Highway Code.
(605 ILCS 5/2-216) (from Ch. 121, par. 2-216)
http://033ffdb.netsolhost.com/mark/ilcs/ilcs41783.html?DocName=060500050HArt.+2+Div.+2&ActID=1745&ChapterID=45&SeqStart=1100000&SeqEnd=3200000
Sec. 2-216. Person-Any person, firm, partnership, association, public or private corporation, organization or business or charitable trust.
(Source: Laws 1959, p. 196.)

I fail to find the term “natural person” used for the Illinois Highway Code. So, to what does that code apply? Does it apply to “this State”, or “the State of Illinois”?

(605 ILCS 5/1-103) (from Ch. 121, par. 1-103)
Sec. 1-103.
This Code applies to all public highways in the State of Illinois, except highways under the exclusive jurisdiction (1) of any department, board, commission or agency of this State other than the Department of Transportation or (2) of any municipal corporation other than a city, village or incorporated town.
(Source: P.A. 77-173.)

Now, this is telling in that the Code applies to all public highways in the State of Illinois, except highways under the exclusive jurisdiction of another agency of “this State” other than the Department of Transporation or of a municipal corporation other than a city, village, or incorporated town. It can also be worded to say, “This Code applies to all public highways in the State of Illinois except areas under the exclusive jurisdiction of something other than the Department of Transportation or a municipal corporation that is not a city, village, or town.” So, as far as the Illinois Highway Code is concerned, there are public highways in the State of Ilinois, and those under the exclusive jurisdiction of “this State”, or a municipal corporation other than a city, village, or incorporated town, which can include a municipal corporation of the Unites States which is also called a State, such as:

625 ILCS 5/1-195) (from Ch. 95 1/2, par. 1-195)
Sec. 1-195. State.
A state, territory or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico or a province of the Dominion of Canada.
(Source: P.A. 76-1586

To complicate matters further, but to illustrate a dual and overlapping jurisdiction of state and federal authority, we will look at Illinois in another light, that being, as a federal territory:

DIVISION 1. SYSTEMS OF HIGHWAYS
http://033ffdb.netsolhost.com/mark/ilcs/ilcs4367d.html?DocName=060500050HArt.+2&ActID=1745&ChapterID=45&SeqStart=500000&SeqEnd=3200000
(605 ILCS 5/2-202) (from Ch. 121, par. 2-202)
Sec. 2-202. Highway-any public way for vehicular travel which has been laid out in pursuance of any law of this State, or of the Territory of Illinois, or which has been established by dedication, or used by the public as a highway for 15 years, or which has been or may be laid out and connect a subdivision or platted land with a public highway and which has been dedicated for the use of the owners of the land included in the subdivision or platted land where there has been an acceptance and use under such dedication by such owners, and which has not been vacated in pursuance of law. The term “highway” includes rights of way, bridges, drainage structures, signs, guard rails, protective structures and all other structures and appurtenances necessary or convenient for vehicular traffic. A highway in a rural area may be called a “road”, while a highway in a municipal area may be called a “street”.
(Source: Laws 1959, p. 196.)

 Now, notice how there is a “Territory of Illinois” distinguished from “this State”. Illinois ceased being a territory with the Ordinance of 1818 when it was allowed statehood. However, the federal government has exclusive jurisdiction over its territories. Notice the “Source” date on the statute. It is 1959. There was no Illinois Territory in 1959, or was there? What exactly do they mean by Territory of Illinois? Let’s look at the definition of a “territory”:

http://legal-dictionary.thefreedictionary.com/territory
TERRITORY. Apart of a country, separated from the rest, and subject to a particular jurisdiction. The word is derived from terreo, and is so called because the magistrate within his jurisdiction has the power of inspiring a salutary fear. Dictum cat ab eo quod magistratus intra fines ejus terrendi jus habet. Henrion de Pansy, Auth. Judiciare, 98. In speaking of the ecclesiastical jurisdictions, Francis Duaren observes, that the ecclesiastics are said not to have territory, nor the power of arrest or removal, and are not unlike the Roman magistrates of whom Gellius says vocationem habebant non prehensionem. De Sacris Eccl. Minist. lib. 1, cap. 4. In the sense it is used in the constitution of the United States, it signifies a portion of the country subject to and belonging to the United States, which is not within the boundary of any of them.
     2. The constitution of the United States, art. 4, s. 3, provides, that “the congress shall have power to dispose of, and make all needful rules and regulations respecting the territory or other property of the United States; and nothing in this constitution shall be construed, so as to preclude the claims of the United States or of any state.”
     3. Congress possesses the power to erect territorial governments within the territory of the United States; the power of congress over such territory is exclusive and universal, and their legislation is subject to no control, unless in the case of ceded territory, as far as it may be affected by stipulations in the cessions, or by the ordinance of 1787, 3 Story’s L. U. S. 2073, under which any part of it has been settled. Story on the Const. Sec. 1322; Rawle on the Const: 237; 1 Kent’s Com. 243, 359; 1 Pet. S. C. Rep. 511, 542, 517.
     4. The only organized territories of the United States are Oregon, Minnesota, New Mexico and Utah. Vide Courts of the United States.

This essentially says that a territory is separate from the rest of the country and subject to particular jurisdiction under the full control of Congress, including land ceded to the federal government and governed by stipulations. I posit, the stipulations are the accepting federal highway dollars for roads and other transportation uses, thereby subjecting the “highways” to the control of Congress, the area over which it legislates is referred to as, “this State”. I am speculating that when it comes to the drivers license, the State of Illinois does not have the right to license the use of roads under the jurisdiction of the United States, and any alleged violation for not possessing a license can be removed to federal court for lack of standing on the part of the state government.

Here is a sampling of how the federal monies are used over certain roads and the corresponding jurisdiction over those roads:

http://033ffdb.netsolhost.com/mark/ilcs/ilcs4c9b1.html?DocName=060500050HArt.+3&ActID=1745&ChapterID=45&SeqStart=3200000&SeqEnd=5200000
(605 ILCS 5/3-104.2) (from Ch. 121, par. 3-104.2)
Sec. 3-104.2. The Department, or the Department in cooperation with municipal corporate authorities or county authorities, is authorized to receive and expend, by agreement or otherwise, federal funds for the construction, reconstruction and improvement of public roads not on any Federal-aid system, being improved under the Federal Aid Road Act.
Any Federal-aid project as authorized in this Section may be undertaken jointly at the expense of the federal government and the State of Illinois, or jointly at the expense of the federal government, a municipality or municipalities, or a county or counties, or jointly at the expense of the federal government, the State of Illinois, a municipality or municipalities or a county or counties, or any of the above jointly with any other public or private entity or public utility.
The authority having jurisdiction over a public road not on any federal-aid system prior to its improvement as a federal-aid project shall continue to be responsible for maintenance, at its own expense.
For the purposes of this Section, “public road” means any road under the jurisdiction of and maintained by a public authority and open to public travel and which is not on a federal-aid system.
(Source: P.A. 84-298.) – (Notice how the term “State of Illinois” is used instead of “this State”)

I apologize if I have deviated from my original intent, but I feel that foundation is important in supporting my analysis. All of this will come together to help you realize that the drivers license laws, although initially under the control of the States as a valid exercise of their police power in licensing and regulating drivers (chaffeurs) who accept compensation for carrying on a business, has now, through federal encroachment, become a plenary object of congress and an agreement between the States and Federal Government to establish a murky jurisdiction. Remember, the Federal Government has no authority within the boundaries of a State without that sovereignty being waived or ceded to the Federal Government, and upon doing so, thereby creates an area of concurrent jurisdiction where a federal State is found within the boundaries of one of the several States. From this, grew the National Driver Register, mandatory seat-belt laws, sobriety checkpoints, and more.

I believe it can be further speculated, that the Governor of the State of Illinois violates his oath of office by acting as an ambassador/administrator for the Federal Government in binding the people to federal regulations without clear constitutional authority or mandate. The nail in the coffin is the Illinois Highway Safety Law. I will reference the law, the Governor’s role, and a telling phraseology of what “this State” is in relation to establishing a federal territory in the State of Illinois for the purpose of receiving federal highway funds, which then provide the nexus for federal regulations imposed upon the states.

(625 ILCS 5/Ch. 17 heading)
CHAPTER 17. ILLINOIS HIGHWAY SAFETY LAW
http://033ffdb.netsolhost.com/mark/ilcs/ilcs43c49.html?DocName=062500050HCh.+17&ActID=1815&ChapterID=49&SeqStart=153100000&SeqEnd=153300000
(625 ILCS 5/17-101) (from Ch. 95 1/2, par. 17-101)
Sec. 17-101. Powers and duties of governor. The Governor, in addition to other duties and responsibilities conferred upon him by the constitution and laws of this State is empowered to contract and to do all other things necessary in behalf of this State to secure the full benefits available to this State under the Federal Highway Safety Act of 1966, as amended, and in so doing, to cooperate with Federal and State agencies, agencies private and public, interested organizations, and with individuals, to effectuate the purposes of that enactment, and any and all subsequent amendments thereto. The Governor is the official of this State having the ultimate responsibility for dealing with the Federal Government with respect to programs and activities pursuant to the National Highway Safety Act of 1966 and any amendments thereto. To that end he shall coordinate the activities of the Secretary of State and the State Board of Education and of any and all departments and agencies of this State and its subdivisions, relating thereto.
(Source: P.A. 81-1508.)

 Let’s analyze this statute line-by-line.

1. The Governor, in addition to other duties and responsibilities conferred upon him by the constitution and laws of this State – The duties and responsibilities of the Governor of Illinois are conferred only by the Constitution of Illinois. The laws do not confer duties and responsibilities. His office is a Constitutional office and the duties and responsibilities are found in the Constitution of Illinois. I would argue that this statute is unconstitutional. The question is, what, exactly, are the duties and responsibilities conferred upon the Governor by “the laws of this State”, which is a federal territory or federal municipal corporation under the jurisdiction imposed by the Federal Highway Safety Act of 1966.

2. The Governor is the official of this State having the ultimate responsibility for dealing with the Federal Government with respect to programs and activities pursuant to the National Highway Safety Act of 1966 and any amendments thereto. – This wording is very suspect, as how did the Governor become the “official of this State”, and where to the responsibilities for dealing with the Federal Government arise in the Illinois Constitution? Since the Governor is a creature of the Constitution, and his duties and obligations are Constitutinal in-nature, let’s look to the Constitution for any “offical of this State” designation or responsibility to the Federal Government:

Illinois Constitution
Article 5, SECTION 8. GOVERNOR—SUPREME EXECUTIVE POWER
http://www.ilga.gov/commission/lru/Ilconstitution.pdf
The Governor shall have the supreme executive power, and shall be responsible for the faithful execution of the laws.
This is the first of several sections setting forth the powers of the Governor. This section states the powers that are most general. The Illinois Supreme Court has commented that this provision does not empower the Governor to establish new legal requirements by executive order or otherwise; as to persons not under his jurisdiction, he may only execute and enforce existing law.
The Governor does have control over agencies under him through his power to remove subordinates and his authority (recognized under Article 13, section 2) to establish ethical standards for agencies under him. – I see no obligation to the Federal Government imposed by the Illinois Constitution. I see no designation for “official of this State”, or any other such designation.

 What I think we have established, or have othewise made a very strong argument for or raised serious questions to, is the object and intent of the Drivers License laws, the proper jurisdiction involved, and whether this is a State law or Federal Law.

 As I said, this may have began with a proper exercise of the police power of the State in legislating for the health, safety, welfare, and morals of its Citizens, but has become something more invasive and encroaching. The issue is not whether we agree with the laws, or whether they serve any compelling state interest or protect public safety, it is by what authority do these laws exist? I’m going to go back to some of the earliest motor vehicle legislation and quote verbatim from that legislation, showing that in the beginning, the only objects of regulation were those using motor vehicles in the pursuit of a pecuniary benefit.

Smith’s Illinois Revised Statutes – 1921
Page 1720
MOTOR VEHICLES
AN ACT in relation to motor vehicles and to repeal a certain act therein named. [Approved June 30, 1919]
Page 1725
228. Chauffers – Regulations – License – Fees, etc.]
§27. An application for a license to operate motor vehicles as a chauffer, who is hereby defined to mean any person operating a

motor vehicle as a mechanic or employee, and who directly or indirectly receives pay or any compensation whatsoever
Page 1726
for any work or services in connection with the operation of a motor vehicle or the transportation of passengers or merchendise with a motor vehicle for hire or for pecuniary profit, shall be made by mail or othewise to the Secretary of State, or his duly authorized agent, upon blanks prepared under his authority….
(Last paragraph on left column of page)
No person shall operate or drive a motor vehicle as a chauffer upon a public highway of this State, unless such person shall have complied in all respects with the requirements of this section: Provided, however, that a non-resident chauffeur who has registered under the provisions of the law in force in the city, state, foreign country or province, territory or Federal district, of his residence, substantially equivalent to the provisions of this section shall be exempt from license hereunder, while temporarily sojouring within this State, only to the extent that under the laws of the city, state, foreign country or province, territory or Federal district of his residence like privileges are granted to persons duly licensed and registered as chauffeurs under the laws of this State, and who are residents of this State.
230. Chauffeur or operator must be licensed.]
§29. No person or corporation shall employ, as a chauffeur or operator of a motor vehicle, any person not specially licensed as aforesaid.

Smith-Hurd
Illinois Revised Statutes
With cross references
1923
Essentially the save verbiage.

Smith-Hurd
Illinois Revised Statutes
With cross references
1925
Essentially the save verbiage.

Cahill Illinois Revised Statutes
Keyed to Annotated Statutes
1927
Essentially the save verbiage.

Smith-Hurd
Illinois Revised Statutes
With cross references
1929
Essentially the save verbiage.

Illinois Revised Statutes
With cross references
1925
State Bar Association Edition
Chap. 95 1/2 section 33 Page 2125
32b. Licenses of chauffeurs for 1938.]
§26b. All the provisions of law in force prior to the passage of this amendatory Act relating to the licensing and regulation of chauffeurs shall remain in full force and effect with respect to all chaiffeurs licensed for the year 1938. The provisions of this amendatory Act relating to the licensing and regulation of chauffeurs shall not apply to chauffeurs so licensed for the year 1938. Added by act filed July 12, 1938. L.1938, First Sp.Sess., p.39.
S.H.A. 95 1/2 Section 32b; J.A. 85.032(2).
33. Chauffeurs – License – Application – Examination – Fee – Age – Form of license-school bus and vehicle of common carrier- Record in office of Secretary of State-Non-resident chauffeurs-Renewal of licenses.]
§27. An application for a license to operate a motor vehicle as a chauffeur, who is hereby defined to mean any person whose principal occupation is that of operating a motor vehicle as a mechanic or employee, or who directly or indirectly receives pay or any compensation whatsoever for any work or services in connection with the operation of a motor vehicle for the transportation of passengers or merchendise for hire, shall be made by mail or othewise to the Secretary of State, or his duly authorized agent, upon blanks prepared under his authority. Provided, however, that no person shall be held to be a chauffeur, and subject to the provisions hereof, who operates a motor vehicle incidentally to some other and principal occupation and where such motor vehicle is so perated solely in furtherance of such other and principal occupation and is not used for the transportation of passengers or merchendise for hire; and, provided, further, that no person shall b eheld to be a chauffeur and subject to the provisions hereof who operates a motor vehicle in the service of the Army, Navy, or Marine Corps of the United States or who operates a road machine, farm tractor or implement of husbandry temporarily drawn, moved, or propelled on a highway; and, provided, further, that any garage which repairs or services motor vehicles and operates a service car shall have at least one licensed chauffeur who insofar as it is possible, shall take care of all testing and outside service work.

Chap. 95 1/2 section 33 Page 2126
34a. License as chauffeur or operator required – Exemptions.]
§28a. On and after May 1, 1939 in the case of operators and on and after January 1, 1939 in the case of chauffeurs, no person except those herinafter expressly exempted, shall drive any motor vehicle upon a highway in this State, unless such person has a valid license as an operator or chauffeur under the provisions of this Act, an operator being hereby defined to mean any person, other than a chauffeur, who is in actual physical control of a motor vechicle upon a highway. Any person holding a valid chauffeur’s license hereunder need not procure an operator’s license. Provided, however, that the following persons are exempt from the requirements of this section:
1. Any person while operating a motor vehicle in the service of the Army, Navy, or Marine Corps of the United States;
2. Any person while driving or operating a road machine, farm tractor or implement of husbandry temporarily drawn, moved, or propelled on a highway;
3. A non-resident of this State who is at least fifteen years of age and who has in his immediate possession a valid operator’s license issued to him in his home State or Country, may operate a motor vehicle in this State only as an operator;
4. A non-resident who is at least eighteen years of age and who has in his immediate possesion a valid chauffeur’s license issued to him in his State or Country may operate a motor vehicle in this State either as an operator or chauffeur except that any such person must be licensed as a chauffeur hereunder before accepting employment as a chauffeur from a resident of this State;
5. Any non-resident who is at least fifteen years of age, whose home State or Country does not require the licensing of operators, while operating a motor vehicle as an operator only, for a period of not more than 90 days in any calendar year, if in the home State or Country of such non-resident.
The provisions of this section granting exemptions to non-residents shall be operative only when under the laws of this State, foreign country or province, territory or federal district of such non-resident, like exemptions and privileges are granted to licensed resident operators and chauffeurs of this State. Added by act filed July 12, 1938. L.1938, First Sp. Sess., p.39

This is where “Operators” came to be and to require licenses. This is the beginning of the “drivers license”.

Given the foregoing, let’s look at the current law and see just “who” is required to have a driver’s license:

(625 ILCS 5/6-101) (from Ch. 95 1/2, par. 6-101)
Sec. 6-101. Drivers must have licenses or permits.
(a) No person, except those expressly exempted by Section 6-102, shall drive any motor vehicle upon a highway in this State unless such person has a valid license or permit, or a restricted driving permit, issued under the provisions of this Act.
(b) No person shall drive a motor vehicle unless he holds a valid license or permit, or a restricted driving permit issued under the provisions of Section 6-205, 6-206, or 6-113 of this Act. Any person to whom a license is issued under the provisions of this Act must surrender to the Secretary of State all valid licenses or permits. No drivers license or instruction permit shall be issued to any person who holds a valid Foreign State license, identification card, or permit unless such person first surrenders to the Secretary of State any such valid Foreign State license, identification card, or permit.
(b-5) Any person who commits a violation of subsection (a) or (b) of this Section is guilty of a Class A misdemeanor, if at the time of the violation the person’s driver’s license or permit was cancelled under clause (a)9 of Section 6-201 of this Code.

Who, is exempt?

http://033ffdb.netsolhost.com/mark/ilcs/ilcs47662.html?DocName=062500050HCh.+6&ActID=1815&ChapterID=49&SeqStart=72100000&SeqEnd=90800000
(625 ILCS 5/6-102) (from Ch. 95 1/2, par. 6-102)
    Sec. 6-102. What persons are exempt. The following persons are exempt from the requirements of Section 6-101 and are not required to have an Illinois drivers license or permit if one or more of the following qualifying exemptions are met and apply:
        1. Any employee of the United States Government or any member of the Armed Forces of the United States, while operating a motor vehicle owned by or leased to the United States Government and being operated on official business need not be licensed;
        2. A nonresident who has in his immediate possession a valid license issued to him in his home state or country may operate a motor vehicle for which he is licensed for the period during which he is in this State;
        3. A nonresident and his spouse and children living with him who is a student at a college or university in Illinois who have a valid license issued by their home State.
        4. A person operating a road machine temporarily upon a highway or operating a farm tractor between the home farm buildings and any adjacent or nearby farm land for the exclusive purpose of conducting farm operations need not be licensed as a driver.
        5. A resident of this State who has been serving as a member of the Armed Forces of the United States outside the Continental limits of the United States, for a period of 90 days following his return to the continental limits of the United States.
        6. A nonresident on active duty in the Armed Forces of the United States who has a valid license issued by his home state and such nonresident’s spouse, and dependent children and living with parents, who have a valid license issued by their home state.
        7. A nonresident who becomes a resident of this State, may for a period of the first 90 days of residence in Illinois operate any motor vehicle which he was qualified or licensed to drive by his home state or country so long as he has in his possession, a valid and current license issued to him by his home state or country. Upon expiration of such 90 day period, such new resident must comply with the provisions of this Act and apply for an Illinois license or permit.
        8. An engineer, conductor, brakeman, or any other member of the crew of a locomotive or train being operated upon rails, including operation on a railroad crossing over a public street, road or highway. Such person is not required to display a driver’s license to any law enforcement officer in connection with the operation of a locomotive or train within this State.
    The provisions of this Section granting exemption to any nonresident shall be operative to the same extent that the laws of the State or country of such nonresident grant like exemption to residents of this State.
    The Secretary of State may implement the exemption provisions of this Section by inclusion thereof in a reciprocity agreement, arrangement or declaration issued pursuant to this Act.
(Source: P.A. 96-607, eff. 8-24-09.)

The power to license rests with the legislature, and their exercise of the police power. I believe the State of Illinois exceeds its police power authority in the current drivers license laws because it does not serve to protect the citizens from a threat to the health, safety, welfare, or morals; and is equally violative of the equal protection clause of the 14th Amendment in excluding some from complying with the licensing requirements. There can be no exclusion for some where the compelling state interest does not differentiate between classes of individuals in carrying forth the provisions of the law. In the case of Mahony v. Township of Hampton, 539 Pa. 193, 651 A.2d 525 (1994), Mahony argued that the government could not be exempt from one ordinance and he be obligated to it. By those under number 1. above being exempt with no rational basis in driver competency, I believe it is violative of the equal protection clause and an invalid exercise of the police power when causing some to be licensed and not others. In-fact, it can be said that the state fails in exercising its police powers because people now can renew their licenses without having to take a competency road test or exam every time their license expires. Theoretically, driver competency can diminish over this time and the state, thereby, places drivers “legally” upon the road who pose an articulable danger to other drivers.

…..More to come……….

 

TABLE OF AUTHORITIES/DEFINITIONS/CASES CITED

Illinois Vehicle Code Definitions:

(625 ILCS 5/1-154.1) (from Ch. 95 1/2, par. 1-154.1)
Sec. 1-154.1. Operate. To ride in or on, other than as a passenger, use or control in any manner the operation of any device or vehicle whether motorized or propelled by human power.
(Source: P.A. 85-830.)

(625 ILCS 5/1-154.2) (from Ch. 95 1/2, par. 1-154.2)
Sec. 1-154.2. Operator. Every person who operates or is in actual physical control of any device or vehicle whether motorized or propelled by human power.
(Source: P.A. 85-830.)

(625 ILCS 5/1-115.8)
Sec. 1-115.8. Drive. To drive, operate, or be in physical control of a motor vehicle.
(Source: P.A. 90-89, eff. 1-1-98.)

(625 ILCS 5/1-116) (from Ch. 95 1/2, par. 1-116)
Sec. 1-116. Driver.
Every person who drives or is in actual physical control of a vehicle.
(Source: P.A. 76-1586.)

(625 ILCS 5/1-209.5)
Sec. 1-209.5. Transportation. The actual movement of property or passengers by motor vehicle, together with loading, unloading, and any other accessorial or ancillary service provided by the carrier in connection with movement by motor vehicle.
(Source: P.A. 90-89, eff. 1-1-98.)

(625 ILCS 5/1-133) (from Ch. 95 1/2, par. 1-133)
Sec. 1-133. Interstate or Interstate Commerce.
Transportation between 2 or more States or transportation originating in one State and passing into or through other States for delivery in another State, and which is not intrastate.
(Source: P.A. 76-1586.)

(625 ILCS 5/1-133.05)
Sec. 1-133.05. Interstate carrier of property. Any person who is engaged in the transportation of property only by motor vehicle in whole or in part in interstate or foreign commerce in this State either with or without authority issued from the Interstate Commerce Commission.
(Source: P.A. 90-89, eff. 1-1-98.)

(625 ILCS 5/1-133.1) (from Ch. 95 1/2, par. 1-133.1)
Sec. 1-133.1. Interstate highway. Any highway which is now, or shall hereafter be, a part of the national system of interstate and defense highways within this State.
(Source: P.A. 85-830.)

(625 ILCS 5/1-134) (from Ch. 95 1/2, par. 1-134)
Sec. 1-134. Intrastate or Intrastate Commerce.
Transportation originating at any point or place within this State and destined to any other point or place within this State, irrespective of the route, highway or highways traversed, and including transportation which passes into or through another State before delivery is made within this State, and including any act of transportation which includes or completes a pickup within Illinois for delivery within Illinois.
(Source: P.A. 76-1586.)

(625 ILCS 5/1-145) (from Ch. 95 1/2, par. 1-145)
Sec. 1-145. Motor carrier.
An operator of For-Hire vehicles pursuant to the Illinois Motor Carrier of Property Law.

(625 ILCS 5/1-122.5) (from Ch. 95 1/2, par. 1-124)
Sec. 1-122.5. For-hire. The operation of a vehicle for compensation and subject to federal regulation by the Interstate Commerce Commission or to state regulation by the Illinois Commerce Commission and those vehicles governed by Chapters 8 and 9 under this Code and regulated by the Secretary of State.
(Source: P.A. 90-89, eff. 1-1-98.)

(625 ILCS 5/1-153) (from Ch. 95 1/2, par. 1-153)
Sec. 1-153. Not-For-Hire.
Operation of a commercial vehicle in furtherance of any commercial or industrial enterprise but not For-Hire.
(Source: P.A. 76-1586.)

(625 ILCS 5/8-101) (from Ch. 95 1/2, par. 8-101)
Sec. 8-101. Proof of financial responsibility – Persons who operate motor vehicles in transportation of passengers for hire.
(a) It is unlawful for any person, firm or corporation to operate any motor vehicle along or upon any public street or highway in any incorporated city, town or village in this State for the carriage of passengers for hire, accepting and discharging all such persons as may offer themselves for transportation unless such person, firm or corporation has given, and there is in full force and effect and on file with the Secretary of State of Illinois, proof of financial responsibility provided in this Act. – (Source: P.A. 76-1586.)

(625 ILCS 5/1-207) (from Ch. 95 1/2, par. 1-207)
Sec. 1-207. Traffic.
Pedestrians, ridden or herded animals, vehicles, streetcars and other conveyances either singly or together while using any highway for purposes of travel.
(Source: P.A. 76-1586.)

(625 ILCS 5/1-217) (from Ch. 95 1/2, par. 1-217)
Sec. 1-217. Vehicle. Every device, in, upon or by which any person or property is or may be transported or drawn upon a highway or requiring a certificate of title under Section 3-101(d) of this Code, except devices moved by human power, devices used exclusively upon stationary rails or tracks and snowmobiles as defined in the Snowmobile Registration and Safety Act.
For the purposes of this Code, unless otherwise prescribed, a device shall be considered to be a vehicle until such time it either comes within the definition of a junk vehicle, as defined under this Code, or a junking certificate is issued for it.
For this Code, vehicles are divided into 2 divisions:
First Division: Those motor vehicles which are designed for the carrying of not more than 10 persons.
Second Division: Those vehicles which are designed for carrying more than 10 persons, those designed or used for living quarters and those vehicles which are designed for pulling or carrying property, freight or cargo, those motor vehicles of the First Division remodelled for use and used as motor vehicles of the Second Division, and those motor vehicles of the First Division used and registered as school buses.
(Source: P.A. 92-812, eff. 8-21-02.)

(625 ILCS 5/1-146) (from Ch. 95 1/2, par. 1-146)
Sec. 1-146. Motor vehicle. Every vehicle which is self-propelled and every vehicle which is propelled by electric power obtained from overhead trolley wires, but not operated upon rails, except for vehicles moved solely by human power, motorized wheelchairs, low-speed electric bicycles, and low-speed gas bicycles. For this Act, motor vehicles are divided into two divisions:
First Division: Those motor vehicles which are designed for the carrying of not more than 10 persons.
Second Division: Those motor vehicles which are designed for carrying more than 10 persons, those motor vehicles designed or used for living quarters, those motor vehicles which are designed for pulling or carrying freight, cargo or implements of husbandry, and those motor vehicles of the First Division remodelled for use and used as motor vehicles of the Second Division.
(Source: P.A. 96-125, eff. 1-1-10.)

(625 ILCS 5/1-157) (from Ch. 95 1/2, par. 1-157)
Sec. 1-157. Passenger car.
A motor vehicle of the First Division including a multipurpose passenger vehicle, that is designed for carrying not more than 10 persons.
(Source: P.A. 78-343.)

(625 ILCS 5/6-101) (from Ch. 95 1/2, par. 6-101)
Sec. 6-101. Drivers must have licenses or permits.
(a) No person, except those expressly exempted by Section 6-102, shall drive any motor vehicle upon a highway in this State unless such person has a valid license or permit, or a restricted driving permit, issued under the provisions of this Act.
(b) No person shall drive a motor vehicle unless he holds a valid license or permit, or a restricted driving permit issued under the provisions of Section 6-205, 6-206, or 6-113 of this Act. Any person to whom a license is issued under the provisions of this Act must surrender to the Secretary of State all valid licenses or permits. No drivers license or instruction permit shall be issued to any person who holds a valid Foreign State license, identification card, or permit unless such person first surrenders to the Secretary of State any such valid Foreign State license, identification card, or permit.
(b-5) Any person who commits a violation of subsection (a) or (b) of this Section is guilty of a Class A misdemeanor, if at the time of the violation the person’s driver’s license or permit was cancelled under clause (a)9 of Section 6-201 of this Code.

(625 ILCS 5/6-112) (from Ch. 95 1/2, par. 6-112)
Sec. 6-112. License and Permits to be carried and exhibited on demand. Every licensee or permittee shall have his drivers license or permit in his immediate possession at all times when operating a motor vehicle and, for the purpose of indicating compliance with this requirement, shall display such license or permit if it is in his possession upon demand made, when in uniform or displaying a badge or other sign of authority, by a member of the State Police, a sheriff or other police officer or designated agent of the Secretary of State. However, no person charged with violating this Section shall be convicted if he produces in court satisfactory evidence that a drivers license was theretofor issued to him and was valid at the time of his arrest.
For the purposes of this Section, “display” means the manual surrender of his license certificate into the hands of the demanding officer for his inspection thereof.
(Source: P.A. 76-1749.)

(625 ILCS 5/1-138) (from Ch. 95 1/2, par. 1-138)
Sec. 1-138. License to drive.
Any driver’s license or any other license or permit to operate a motor vehicle issued under the laws of this State including:
1. Any temporary license or instruction permit;
2. The privilege of any person to drive a motor vehicle whether or not such person holds a valid license or permit.
3. Any nonresident’s driving privilege as defined herein.
(Source: P.A. 76-1586.)

(625 ILCS 5/1-138.1) (from Ch. 95 1/2, par. 1-138.1)
Sec. 1-138.1. Licensee. A person licensed or required to be licensed under Sections 5-101, 5-102, 5-201 and 5-301 of this Code.
(Source: P.A. 83-1473.)

(625 ILCS 5/5-101) (from Ch. 95 1/2, par. 5-101)
Sec. 5-101. New vehicle dealers must be licensed.
(625 ILCS 5/5-102) (from Ch. 95 1/2, par. 5-102)
Sec. 5-102. Used vehicle dealers must be licensed.
(625 ILCS 5/5-201) (from Ch. 95 1/2, par. 5-201)
Sec. 5-201. Transporters must apply for in-transit plates.
(625 ILCS 5/5-301) (from Ch. 95 1/2, par. 5-301)
Sec. 5-301. Automotive parts recyclers, scrap processors, repairers and rebuilders must be licensed.

(625 ILCS 5/1-110) (from Ch. 95 1/2, par. 1-110)
Sec. 1-110. Cancellation of driver’s license.
The annulment or termination by formal action of the Secretary of a person’s driver’s license because of some error or defect in the license or because the licensee is no longer entitled to such license, but, with the exception of Sections 6-107, 6-108 and 6-201, the cancellation of a license is without prejudice and application for a new license may be made at any time after such cancellation.
(Source: P.A. 86-1450.)
(625 ILCS 5/6-107) (from Ch. 95 1/2, par. 6-107)
Sec. 6-107. Graduated license.
(625 ILCS 5/6-108) (from Ch. 95 1/2, par. 6-108)
Sec. 6-108. Cancellation of license issued to minor.
(625 ILCS 5/6-201)
(Text of Section from P.A. 97-208)
Sec. 6-201. Authority to cancel licenses and permits.

ARTICLE II. CANCELLATION, SUSPENSION, OR
REVOCATION OF LICENSES AND PERMITS

(625 ILCS 5/6-201)
(Text of Section from P.A. 97-208)
Sec. 6-201. Authority to cancel licenses and permits.
(a) The Secretary of State is authorized to cancel any license or permit upon determining that the holder thereof:
(SEE FULL CITATION)

(625 ILCS 5/6-202) (from Ch. 95 1/2, par. 6-202)
Sec. 6-202. Non-residents and Unlicensed Persons-Revocation and Suspension-Reporting Convictions.
(a) The privilege of driving a motor vehicle on highways of this State given to a nonresident hereunder and the privilege which an unlicensed person might have to obtain a license under this Act shall be subject to suspension or revocation by the Secretary of State in like manner and for like cause as a drivers license issued hereunder may be suspended or revoked.
(b) The Secretary of State is authorized, upon receiving a report of the conviction in this State of a nonresident driver of a motor vehicle of any offense under the laws of this State relating to operation, custody or ownership of motor vehicles, to forward a copy or abstract of such report to the motor vehicle administrator of the State wherein the person so convicted is a resident.
(c) (Blank.)
(d) This section is subject to the provisions of the Driver License Compact.
(Source: P.A. 96-962, eff. 7-2-10.)

(625 ILCS 5/6-206)
(Text of Section from P.A. 96-1551)
Sec. 6-206. Discretionary authority to suspend or revoke license or permit; Right to a hearing.
(a) The Secretary of State is authorized to suspend or revoke the driving privileges of any person without preliminary hearing upon a showing of the person’s records or other sufficient evidence that the person:
(SEE FULL CITATION)

(625 ILCS 5/6-209) (from Ch. 95 1/2, par. 6-209)
Sec. 6-209. Notice of Cancellation, Suspension or Revocation – Surrender and Return of License. The Secretary of State upon cancelling, suspending or revoking a license or permit shall immediately notify the holder thereof in writing and shall require that such license or permit shall be surrendered to and retained by the Secretary of State. However, upon payment of the reinstatement fee set out in subsection (g) of Section 6-118 at the end of any period of suspension of a license the licensee, if not ineligible for some other reason, shall be entitled to reinstatement of driving privileges and the return of his license if it has not then expired; or, in case it has expired, to apply for a new license.
(Source: P.A. 81-462.)

(625 ILCS 5/6-212) (from Ch. 95 1/2, par. 6-212)
Sec. 6-212. Court Review. The provisions of the Administrative Review Law, and all amendments and modifications thereof, and the rules adopted pursuant thereto, shall apply to and govern all proceedings for the judicial review of final administrative decisions of the Secretary of State hereunder.
(Source: P.A. 82-783.)

(625 ILCS 5/1-159) (from Ch. 95 1/2, par. 1-159)
Sec. 1-159. Person.
Every natural person, firm, copartnership, association or corporation.
(Source: P.A. 76-1586.)

(625 ILCS 5/1-173) (from Ch. 95 1/2, par. 1-173)
Sec. 1-173. Resident.
(a) Every natural person who resides in this state shall be deemed a resident of this State.
(b) In the case of a firm, copartnership or association, if the principal place of business of such firm, copartnership or association is located in the State of Illinois, then such firm, copartnership or association shall be deemed a resident of the State of Illinois.
(c) In the case of a corporation, if the corporation was incorporated under the laws of the State of Illinois or if the principal place of business of such corporation is in the State of Illinois, then such corporation shall be deemed a resident of the State of Illinois.
(Source: P.A. 76-1586.)

(625 ILCS 5/1-115.6)
Sec. 1-115.6. Domiciliary. A person who is domiciled.
(Source: P.A. 90-89, eff. 1-1-98.)

(625 ILCS 5/1-195) (from Ch. 95 1/2, par. 1-195)
Sec. 1-195. State.
A state, territory or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico or a province of the Dominion of Canada.
(Source: P.A. 76-1586.)

 

OTHER NOTES AND SOURCES

S.H.A. ch. 95½, §§ 6-101 et seq.
Driver’s license as privilege or property right see 11 De Paul L.Rev. 125 (1961).
11 De Paul L.Rev. 125 (1961)

References 

§ 97. Nature and Effect of License; Transfer

Legal Encyclopedias

C.J.S., Motor Vehicles § 159
A license to operate a motor vehicle is a mere privilege.
A license to operate a motor vehicle on the public highways is a mere privilege and is not a property right. [Foot Note 38]

While the Illinois Driver Licensing Law no longer provides for chauffeur’s licenses, as discussed supra § 93, the licensing of chauffeurs was a grant, personal to the applicant, did not extend to anyone else, [Foot Note 39] and a chauffeur’s license was not transferable. [Foot Note 40]
    [Foot Note 38] See 1947 Op.Atty.Gen. 115.

    [Foot Note 39] Use by son of father’s license

    Boy under age of eighteen years, ineligible to obtain a chauffeur’s license, has no legal right to operate father’s taxicab, although father has a chauffeur’s license.—See 1926 Op.Atty.Gen. 507.

    [Foot Note 40] See 1916 Op.Atty.Gen. 910.
END OF SECTION
Illinois Law & Practice
Automobiles and Motor Vehicles
Chapter 9. Crimes and Prosecutions
B. Particular Offenses

Correlation Table  References 

§ 425. Driving without Driver’s License

Legal Encyclopedias

C.J.S., Motor Vehicles § 639(1)
It is a punishable offense for any person to drive a motor vehicle unless such person has a valid license or permit.
Under the Illinois Vehicle Code, [Foot Note 97] and under some municipal ordinances, [Foot Note 98] it is a punishable offense for any person to drive a motor vehicle unless such person has a valid license or permit. [Foot Note 99]

It is essential for a conviction of failure to have a driver’s license when operating a motor vehicle that there be proof beyond a reasonable doubt that the defendant was driving the automobile at the time in question. [Foot Note 1]
CUMULATIVE SUPPLEMENT

Cases:

Driver’s arrest outside jurisdiction of arresting officer was within officers statutory authority to arrest, where officer observed driver commit traffic infraction forming sufficient basis for stop while within officer’s jurisdiction and formed initial suspicion that driver was driving with suspended license while driver was within officer’s jurisdiction. People v. Schaefer, 343 Ill. App. 3d 159, 277 Ill. Dec. 600, 796 N.E.2d 686 (2d Dist. 2003).
[END]
4 Ill. Law and Prac. Automobiles and Motor Vehicles § 91

Illinois Law & Practice
Automobiles and Motor Vehicles
Chapter 4. Licensing and Regulation of Drivers
A. In General

References 

§ 91. General Considerations
AutomobilesKey Symbol130, 136, 145

Legal Encyclopedias

C.J.S., Motor Vehicles §§ 146 et seq.

Forms

Modern Legal Forms, Automobiles
No person except those expressly exempted may drive a motor vehicle on an Illinois highway unless he has a valid license or permit.
Under the Illinois Driver Licensing Law, which is part of the Illinois Vehicle Code of 1969, effective July 1, 1970, and which regulates the privilege of operating motor vehicles on the highways, no person except those expressly exempted shall drive any motor vehicle on a highway in the State of Illinois unless he has a valid license or permit, or a restricted license or permit, issued under the Act. [Foot Note 1]

The Secretary of State is charged with the administration of the Act and may make and enforce rules and regulations relating to its administration. [Foot Note 2]

The failure of a driver to have a license has no logical relevance to the issues of negligence or contributory negligence. [Foot Note 3]

Local regulations. Within constitutional limitations, municipalities may regulate and license drivers of motor vehicles to the extent that authority has been delegated by the General Assembly; [Foot Note 4] but any person licensed as a driver under the Driver Licensing Law may not be required by any city, village, incorporated town or other municipal corporation to obtain any other license to exercise the privilege thereby granted. [Foot Note 5]

Under the Cities and Villages Act, municipalities have the power to license, tax, and regulate hackmen, draymen, omnibus drivers, carters, cabmen, porters, expressmen, and all others pursuing like occupations, and to prescribe their compensation; [Foot Note 6] and motor trucks, motor driven commercial vehicles, and motor vehicles which are used for public hire are excepted from the prohibition of a municipal tax or license fee. [Foot Note 7]

The City of Chicago has the right to enact ordinances restricting the use of its streets as a place of business by taxicab drivers unless they are properly licensed. [Foot Note 8] It has been held that an ordinance which compels a person who uses his automobile for his private business and pleasure only to submit to an examination and to take out a license imposes a burden on one class of citizens in the use of the streets not imposed on the others, and that it is beyond the power of a municipality and void. [Foot Note 9]

In any event an ordinance which is unreasonable and arbitrary is invalid. [Foot Note 10]

Driver’s license medical review. A Driver’s License Medical Advisory Board has been established within the Office of Secretary of State, to establish standards for determining the degree to which a person’s medical condition constitutes a limitation to the person’s ability to operate a motor vehicle or causes the person to be a driving hazard. Cases shall be referred to the Board by the Secretary, for medical evaluation of the person under review, and to determine what medical conditions exist that may impair the individual’s ability to operate a motor vehicle safely. [Foot Note 10.5]

Driver’s duty to report medical condition. Every driver shall report to the Secretary any medical condition that is likely to cause loss of consciousness or any loss of ability to safely operate a motor vehicle within 10 days of the driver becoming aware of the condition. [Foot Note 10.10]
    [Foot Note 1] S.H.A. ch. 95½, §§ 6-101 et seq.

    S.H.A. ch. 95½, ¶¶6-101 et seq., is now 625 ILCS 5/6-101 et seq., recodified effective January 1, 1993.

    See 1958 Op.Atty.Gen. 218; 1961 Op.Atty.Gen. 16.

    Driver’s license as privilege or property right see 11 De Paul L.Rev. 125 (1961).

    People v. Frye, 1983, 4 Dist., 447 N.E.2d 1065, 69 Ill.Dec. 630, 113 Ill.App.3d 853 (possession of valid license at any time is prima facie proof that holder must have driven upon highways of state as predicate for application of implied consent statute).

    [Foot Note 2] S.H.A. ch. 95½, § 6-211.

    S.H.A. ch. 95½, ¶6-211, is now 625 ILCS 5/6-211, recodified effective January 1, 1993.

    Revocation of driving school license

    Perez v. Edgar, 1982, 436 N.E.2d 639, 62 Ill.Dec. 613, 106 Ill.App.3d 981.

    [Foot Note 3] Perry v. Richerson, 1954, 122 N.E.2d 75, 3 Ill.App.2d 338.

    [Foot Note 4] Power conferred by charter

    City of Chicago Charter, § 1, cls. 7, 9, 66, delegating police power to the city, and giving power over its streets, authorized it to pass Code Ordinances 1911, § 2696, prohibiting the use of automobiles in the transportation of passengers or merchandise by a person not competent who has not been examined and licensed.—City of Chicago v. Kluever, 1913, 100 N.E. 917, 257 Ill. 317.

    [Foot Note 5] S.H.A. ch. 95½, § 6-101(c).

    S.H.A. ch. 95½, ¶6-101(c), is now 625 ILCS 5/6-101(c), recodified effective January 1, 1993.

    [Foot Note 6] S.H.A. ch. 24, § 11-42-6.

    S.H.A. ch. 24, ¶11-42-6, is now 65 ILCS 5/11-42-6, recodified effective January 1, 1993.

    [Foot Note 7] S.H.A. ch. 24, § 8-11-4.

    S.H.A. ch. 24, ¶8-11-4, was amended in 1983 (provision deleted).

    Ordinance requiring license

    Cities and villages may adopt ordinances not inconsistent with Motor Vehicle Law requiring all persons operating cars for public hire or commercial purposes to secure a license so to do.—See 1914 Op.Atty.Gen. 1131.

    [Foot Note 8] City of Chicago v. Dorband, 1939, 18 N.E.2d 107, 297 Ill.App. 617.

    People v. Thompson, 1922, 225 Ill.App. 567.

    [Foot Note 9] City of Chicago v. Banker, 1904, 112 Ill.App. 94 (Chicago ordinance of June 30, 1902).

    [Foot Note 10] Ambulance driver

    Portion of ordinance prohibiting issuance of ambulance attendant-driver’s license to any person at any time after conviction of crime involving use of deadly weapon, traffic in narcotic drugs, infamous crime against nature, incest or rape did not bear any relationship to public health or safety, was unreasonable and arbitrary and was invalid as to ambulance attendant-driver who owned ambulance service and had been convicted of armed robbery 17 years prior to application for license.—Roth v. Daley, 1970, 256 N.E.2d 166, 119 Ill.App.2d 462.

    [Foot Note 10.5] S.H.A. ch. 95½ ¶¶6900 et seq. is now 625 ILCS 5/6-900 et seq., recodified in 1993.

    S.H.A. ch. 95½, ¶¶6-900 et seq., added in 1992.

    [Foot Note 10.10] 625 ILCS 5/6-116.5, added in 1996.
IL-LP AUTOS § 91

END OF SECTION

C.J.S., Motor Vehicles §§ 146 et seq.

60 C.J.S. Motor Vehicles § 262

Corpus Juris Secundum
Motor Vehicles
By John Bourdeau, J.D., Paul Coltoff, J.D., Edward K. Esping, J.D., of Professional Publishing Associates, Inc., John R. Kennel, J.D. of the staff of the National Legal Research Group, Inc., Sonja Larsen, J.D., Lucas Martin, J.D., Thomas Muskus, J.D., Charles Nagy, J.D., Carmela Pellegrino, J.D., Eric C. Surette, J.D., Susan L. Thomas, J.D., of Professional Publishing Associates, Inc.
V. License and Regulation of Drivers or Chauffeurs
A. Control and Regulation
3. Persons Subject to License Regulations
a. In General

Topic Summary  Correlation Table 

§ 262. Generally

License regulations apply to the driver of a motor vehicle, and must be complied with by all coming within the terms of such regulations.
Generally, by virtue of statutory provisions or regulations, only persons who hold licenses as chauffeurs or operators may lawfully operate or drive motor vehicles upon the public highways.[Foot Note 1] Where the operator of a private commercial carrier is obligated by law to obtain a commercial driver’s license, this requirement applies to all persons regularly engaged as operators of such carriers.[Foot Note 2] In some jurisdictions, a person who operates a motor vehicle for hire must obtain a special license,[Foot Note 3] but if a vehicle is operated for purposes other than furnishing transportation for hire no special license is required.[Foot Note 4]

Where every operator is required to obtain a license, the license is personal to the particular person who operates the motor vehicle and must be obtained by, and issued to, him or her.[Foot Note 5] Therefore, a corporation or partnership which owns or controls a motor vehicle is not entitled to a license to operate it.[Foot Note 6]

Where statutorily provided that no person may operate a motor vehicle for hire or as a chauffeur unless specially licensed so to do, an owner who is licensed merely as an operator, and not as a chauffeur, is not authorized to operate his or her automobile for hire.[Foot Note 7] However, a person holding a license as a commercial operator or chauffeur is not required to have an ordinary operator’s license.[Foot Note 8]

Unless expressly exempted, state officers and employees come within the requirements of licensing provisions broad enough in their terms to include such persons.[Foot Note 9] A municipality operating busses running through another city is required to comply with reasonable regulations concerning the qualifications of drivers of such busses.[Foot Note 10]
Steering towed car.

A person steering a disabled motor vehicle which is being towed by another car is not operating or driving a motor vehicle within the meaning of a statutory provision requiring an operator or driver to be licensed.[Foot Note 11]
    [Foot Note 1] Tex.—Leatherman v. Starkey, 356 S.W.2d 151 (Tex. Civ. App. Amarillo 1962), writ refused n.r.e., (Oct. 6, 1962).

    Intent to change residence as affecting residence, see C.J.S., Domicile §§ 14 to 17.

    License not required for driver on unfinished road

    W.Va.—State v. Boyles, 112 W. Va. 125, 163 S.E. 814 (1932).
    No operating or driving where vehicle not started

    N.Y.—Ricciardi v. McMahon, 163 Misc. 659, 299 N.Y.S. 440 (City Ct. 1937).
    Intention to change residence

    D.C.—Bush v. District of Columbia, 78 A.2d 234 (Mun. Ct. App. D.C. 1951).

    [Foot Note 2] Driver employed by railroad

    Miss.—Lumpkin v. Birdsong, 212 Miss. 616, 55 So. 2d 230 (1951).

    [Foot Note 3] Operation for hire construed

    R.I.—State v. Brown, 97 R.I. 95, 196 A.2d 138 (1963).

    [Foot Note 4] R.I.—State v. Brown, 97 R.I. 95, 196 A.2d 138 (1963).

    [Foot Note 5] N.H.—Emerson Troy Granite Co. v. Pearson, 74 N.H. 22, 64 A. 582 (1906).

    Legal name requirement valid

    U.S.—Forbush v. Wallace, 341 F. Supp. 217 (M.D. Ala. 1971), judgment aff’d, 405 U.S. 970, 92 S. Ct. 1197, 31 L. Ed. 2d 246 (1972).

    [Foot Note 6] N.H.—Emerson Troy Granite Co. v. Pearson, 74 N.H. 22, 64 A. 582 (1906).

    Registration of the vehicle in corporate or partnership name, see § 168.

    [Foot Note 7] Mass.—Griffin v. Hustis, 234 Mass. 95, 125 N.E. 387 (1919).

    [Foot Note 8] Cal.—Sogawa v. Department of Motor Vehicles, 100 Cal. App. 2d 181, 223 P.2d 269 (2d Dist. 1950).

    [Foot Note 9] Mo.—City of St. Louis v. Carpenter, 341 S.W.2d 786, 87 A.L.R.2d 1219 (Mo. 1961).

    [Foot Note 10] Ohio—Cleveland Ry. Co. v. Village of North Olmsted, 130 Ohio St. 144, 4 Ohio Op. 31, 198 N.E. 41, 101 A.L.R. 426 (1935).

    [Foot Note 11] Ohio—City of Toledo v. Burks, 100 Ohio App. 127, 60 Ohio Op. 104, 136 N.E.2d 150 (6th Dist. Lucas County 1955).
END OF SECTION
60 C.J.S. Motor Vehicles § 256

Corpus Juris Secundum
Motor Vehicles
By John Bourdeau, J.D., Paul Coltoff, J.D., Edward K. Esping, J.D., of Professional Publishing Associates, Inc., John R. Kennel, J.D. of the staff of the National Legal Research Group, Inc., Sonja Larsen, J.D., Lucas Martin, J.D., Thomas Muskus, J.D., Charles Nagy, J.D., Carmela Pellegrino, J.D., Eric C. Surette, J.D., Susan L. Thomas, J.D., of Professional Publishing Associates, Inc.
V. License and Regulation of Drivers or Chauffeurs
A. Control and Regulation
1. In General

Topic Summary  Correlation Table 

§ 256. Purpose

Motor vehicle operators and chauffeurs are generally licensed by the state in the interest of public safety.
Generally, the purposes of requiring chauffeurs and operators to be licensed are to insure the competency of the operators of motor vehicles and to regulate the use of this means of rapid transit on the public highways, in the interest of public safety.[Foot Note 1] It is also the purpose of such licensing to furnish a further guaranty that proper use of the vehicle will be made,[Foot Note 2] and that it will be operated in compliance with applicable statutory provisions.[Foot Note 3] The purpose of requiring the operator of a motor vehicle to report changes of address to the commissioner of motor vehicles is identification of drivers and the facilitation of communication with them.[Foot Note 4]
    [Foot Note 1] Nev.—State, Dept. of Motor Vehicles and Public Safety v. Miles, 111 Nev. 681, 895 P.2d 1316 (1995).

    [Foot Note 2] State may make and enforce regulations reasonably calculated to promote care

    Neb.—Russell v. State, Dept. of Motor Vehicles, 247 Neb. 885, 531 N.W.2d 212 (1995).

    [Foot Note 3] N.H.—Emerson Troy Granite Co. v. Pearson, 74 N.H. 22, 64 A. 582 (1906).

    Purpose of requirement that epilepsy patients be disclosed to licensing authority

    U.S.—Harden v. Allstate Ins. Co., 883 F. Supp. 963 (D. Del. 1995).

    [Foot Note 4] Conn.—State v. Baltromitis, 5 Conn. Cir. Ct. 72, 242 A.2d 99 (App. Div. 1967).
END OF SECTION
60 C.J.S. Motor Vehicles § 257

Corpus Juris Secundum

Motor Vehicles
By John Bourdeau, J.D., Paul Coltoff, J.D., Edward K. Esping, J.D., of Professional Publishing Associates, Inc., John R. Kennel, J.D. of the staff of the National Legal Research Group, Inc., Sonja Larsen, J.D., Lucas Martin, J.D., Thomas Muskus, J.D., Charles Nagy, J.D., Carmela Pellegrino, J.D., Eric C. Surette, J.D., Susan L. Thomas, J.D., of Professional Publishing Associates, Inc.
V. License and Regulation of Drivers or Chauffeurs
A. Control and Regulation
1. In General

Topic Summary  Correlation Table 

§ 257. Right to operate as privilege
AutomobilesKey Symbol130, 132 to 136, 143
The right to operate a motor vehicle is, generally, a privilege, not a right.
A license is, generally, merely a personal privilege,[Foot Note 1] which may be revoked.[Foot Note 2] Where a license is deemed a personal privilege, it is not a vested right,[Foot Note 3] nor is it considered a natural right[Foot Note 4] or a civil right.[Foot Note 5] A driver’s license is also not a contract or property right[Foot Note 6] in any legal or constitutional sense.[Foot Note 7] Neither is it a right of such a nature that it may be sold or assigned.[Foot Note 8] The payment by the licensee of the required fees upon the issuance to him or her of the operator’s license does not convert the privilege granted into a property right.[Foot Note 9]

In some jurisdictions, however, while still recognizing that a license is a personal privilege, a license is deemed in the nature of a right.[Foot Note 10] In other jurisdictions, a license is both a personal privilege and a property right.[Foot Note 11] In still other jurisdictions, a license to operate a motor vehicle is more of a property interest.[Foot Note 12] A license may also be determined to be a vested property right in the individual.[Foot Note 13]
    [Foot Note 1] La.—State v. Jackson, 764 So. 2d 64 (La. 2000).

    Highway driving a privilege, not a right

    Ill.—People v. Jung, 192 Ill. 2d 1, 248 Ill. Dec. 258, 733 N.E.2d 1256 (2000).
    Privilege not constitutionally guaranteed

    N.D.—North Dakota Dept. of Transp. v. DuPaul, 487 N.W.2d 593 (N.D. 1992).
    Conditional privilege

    Va.—Walton v. Com., 255 Va. 422, 497 S.E.2d 869 (1998).
    Important and valued privilege

    Vt.—Bolio v. Malloy, 126 Vt. 424, 234 A.2d 336 (1967).
    Limited right

    Pa.—Com. v. Vivio, 209 Pa. Super. 90, 224 A.2d 777 (1966).
    Qualified right

    Mo.—Blydenburg v. David, 413 S.W.2d 284 (Mo. 1967).

    [Foot Note 2] Mont.—Nelson v. Driscoll, 1999 MT 193, 295 Mont. 363, 983 P.2d 972 (1999).

    Revocation or suspension of license, generally, see §§ 290to 293.

    [Foot Note 3] Cal.—O’Connor v. Superior Court, 90 Cal. App. 3d 107, 153 Cal. Rptr. 306 (1st Dist. 1979).

    Not right entitled to protection against governmental interference or restriction

    Colo.—People v. Zinn, 843 P.2d 1351 (Colo. 1993).

    [Foot Note 4] Kan.—State v. Bowie, 268 Kan. 794, 999 P.2d 947 (2000).

    Not absolute right

    Ohio—Dobbins v. Ohio Bur. of Motor Vehicles, 75 Ohio St. 3d 533, 664 N.E.2d 908 (1996).

    [Foot Note 5] Tex.—Allen v. State, 410 S.W.2d 52 (Tex. Civ. App. Houston 1966).

    [Foot Note 6] Ohio—Dobbins v. Ohio Bur. of Motor Vehicles, 75 Ohio St. 3d 533, 664 N.E.2d 908 (1996).

    [Foot Note 7] Cal.—Department of Motor Vehicles v. Superior Court, 58 Cal. App. 3d 936, 130 Cal. Rptr. 311 (1st Dist. 1976).

    [Foot Note 8] N.Y.—City of Rochester v. Falk, 170 Misc. 238, 9 N.Y.S.2d 343 (City Ct. 1939).

    [Foot Note 9] Kan.—State v. Finley, 198 Kan. 585, 426 P.2d 251 (1967), opinion withdrawn on other grounds on reh’g, 199 Kan. 615, 433 P.2d 414 (1967).

    License fees, see §§ 281to 283.

    [Foot Note 10] N.D.—State ex rel. Hjelle v. A Motor Vehicle Described as a 1973 Brockway Tractor License No. 237342, Serial No. 79629, Trailer SN No. 75-2531-LB-150, 299 N.W.2d 557 (N.D. 1980).

    Nonfundamental right

    Va.—Walton v. Com., 255 Va. 422, 497 S.E.2d 869 (1998).

    [Foot Note 11] Pa.—Com., Dept. of Transp., Bureau of Traffic Safety v. Quinlan, 47 Pa. Commw. 214, 408 A.2d 173 (1979).

    [Foot Note 12] W.Va.—Abshire v. Cline, 193 W. Va. 180, 455 S.E.2d 549 (1995).

    Substantial right

    N.Y.—Pringle v. Wolfe, 88 N.Y.2d 426, 646 N.Y.S.2d 82, 668 N.E.2d 1376 (1996).
    Real value

    N.Y.—Schutt v. MacDuff, 205 Misc. 43, 127 N.Y.S.2d 116 (Sup 1954).

    [Foot Note 13] N.Y.—People v. Emmanuel, 82 Misc. 2d 298, 368 N.Y.S.2d 773 (City Crim. Ct. 1975).

    Substantial property interest that may not be deprived without due process of law

    N.Y.—Pringle v. Wolfe, 88 N.Y.2d 426, 646 N.Y.S.2d 82, 668 N.E.2d 1376 (1996).
    Basis of change in view from privilege to vested property right

    N.Y.—People v. McAnarney, 28 Misc. 2d 778, 210 N.Y.S.2d 340 (County Ct. 1961).
END OF SECTION

60 C.J.S. Motor Vehicles § 260

Corpus Juris Secundum
Motor Vehicles
By John Bourdeau, J.D., Paul Coltoff, J.D., Edward K. Esping, J.D., of Professional Publishing Associates, Inc., John R. Kennel, J.D. of the staff of the National Legal Research Group, Inc., Sonja Larsen, J.D., Lucas Martin, J.D., Thomas Muskus, J.D., Charles Nagy, J.D., Carmela Pellegrino, J.D., Eric C. Surette, J.D., Susan L. Thomas, J.D., of Professional Publishing Associates, Inc.
V. License and Regulation of Drivers or Chauffeurs
A. Control and Regulation
2. Power to License

Topic Summary  Correlation Table 

§ 260. State

Within constitutional limits, a state legislature may require drivers of motor vehicles on the public highways to be licensed and may impose reasonable conditions under which the license is to be issued.
The granting or withholding of licenses to operators of motor vehicles is a method of exercise of the state’s regulatory power over public highways.[Foot Note 1] The state legislature, under this power, has control of the licensing of those who, as chauffeurs or operators, drive such vehicles.[Foot Note 2] In the absence of constitutional restrictions, it may require that, before a person is entitled to operate or drive a motor vehicle upon the public highways, he or she must obtain a license as a chauffeur or operator and pay a prescribed license fee.[Foot Note 3]

In the exercise of this power, the legislature may classify the persons to whom the prescribed regulations will apply, provided such classification is not unreasonable and arbitrary.[Foot Note 4] Thus, the legislature may reasonably distinguish between individuals on the basis of maturity and judgment, physical capacity or ability, and similar matters which would affect the competency of a person to safely operate a motor vehicle upon the highway.[Foot Note 5] The state may prescribe the conditions under which the privilege of operating such vehicles may be granted[Foot Note 6] and exercised.[Foot Note 7] The legislature may reserve this power exclusively to the state[Foot Note 8] in order to establish, throughout the state, a uniform system regarding the licensing of chauffeurs and operators.[Foot Note 9] The legislature may also vest exclusive authority to issue licenses in a state board or commission.[Foot Note 10] Additionally, a legislature may be authorized to enact a statutory provision granting state courts the right to issue judicial driving permits.[Foot Note 11]
    [Foot Note 1] N.C.—Smith v. Walsh, 34 N.C. App. 287, 238 S.E.2d 157 (1977).

    Purpose

    Ohio—City of Kettering v. Baker, 42 Ohio St. 2d 351, 71 Ohio Op. 2d 322, 328 N.E.2d 805 (1975).

    [Foot Note 2] Mich.—Nicholas v. Secretary of State, 74 Mich. App. 64, 253 N.W.2d 662 (1977).

    [Foot Note 3] U.S.—Wood v. Wm. B. Reilly & Co., 40 F. Supp. 507 (N.D. Ga. 1941).

    Persons subject to license regulations, generally, see §§ 262to 264.

    License fees, generally, see §§ 281to 283.

    [Foot Note 4] Cal.—Ex parte Stork, 167 Cal. 294, 139 P. 684 (1914).

    Taxicab license

    Wash.—Tarver v. City Commission In and For City of Bremerton, 72 Wash. 2d 726, 435 P.2d 531 (1967).

    [Foot Note 5] Wash.—State v. Scheffel, 82 Wash. 2d 872, 514 P.2d 1052 (1973).

    Qualifications or eligibility for license, generally, see §§ 268to 271.

    [Foot Note 6] S.D.—Blow v. Commissioner of Motor Vehicles, 83 S.D. 628, 164 N.W.2d 351 (1969).

    Reasonable regulation

    U.S.—Quetawki v. Prentice, 303 F. Supp. 737 (D.N.M. 1968).

    [Foot Note 7] N.Y.—People v. Frank, 61 Misc. 2d 450, 305 N.Y.S.2d 940 (Sup 1969).

    [Foot Note 8] Tex.—Ball v. City of McKinney, 286 S.W. 341 (Tex. Civ. App. Dallas 1926), writ refused, (Nov. 10, 1926).

    [Foot Note 9] N.Y.—Boord v. Wallander, 195 Misc. 557, 89 N.Y.S.2d 796 (Sup 1949), judgment modified on other grounds, 277 A.D. 253, 98 N.Y.S.2d 1 (1st Dep’t 1950), judgment aff’d on other grounds, 302 N.Y. 890, 100 N.E.2d 177 (1951).

    [Foot Note 10] Neb.—Johnston v. Department of Motor Vehicles, 190 Neb. 606, 212 N.W.2d 342 (1973).

    Duty as to medically suspect drivers

    La.—Fowler v. Roberts, 526 So. 2d 266 (La. Ct. App. 2d Cir. 1988), writ denied, 531 So. 2d 278 (La. 1988) and writ granted, 531 So. 2d 257 (La. 1988) and judgment aff’d, 556 So. 2d 1 (La. 1989).
    Control over other governmental agencies

    Cal.—Yeoman v. Department of Motor Vehicles, 273 Cal. App. 2d 71, 78 Cal. Rptr. 251 (4th Dist. 1969).

    [Foot Note 11] Ill.—People v. Inghram, 118 Ill. 2d 140, 113 Ill. Dec. 65, 514 N.E.2d 977 (1987).
END OF SECTION
60 C.J.S. Motor Vehicles V Refs.

Corpus Juris Secundum

Motor Vehicles
By John Bourdeau, J.D., Paul Coltoff, J.D., Edward K. Esping, J.D., of Professional Publishing Associates, Inc., John R. Kennel, J.D. of the staff of the National Legal Research Group, Inc., Sonja Larsen, J.D., Lucas Martin, J.D., Thomas Muskus, J.D., Charles Nagy, J.D., Carmela Pellegrino, J.D., Eric C. Surette, J.D., Susan L. Thomas, J.D., of Professional Publishing Associates, Inc.
V. License and Regulation of Drivers or Chauffeurs

Topic Summary  Correlation Table 

Research References
Drinking/Driving Litigation Criminal and Civil (2d ed.) (DRNKDRIVING)

A.L.R. Library

West’s A.L.R. Digest, AutomobilesKey Symbol129 to 145
A.L.R. Index: Automobiles and Highway Traffic; Certificates of Title; Driver’s Licenses; Driving While Under the Influence of Drugs; Guest Statute; Passengers; Pedestrians; Reckless Driving; Speed and Speeding; Traffic Offenses and Violations
Denial Of Accused’s Request For Initial Contact With Attorney—Drunk Driving Cases, 109 A.L.R. 5th 611
Admissibility, In Motor Vehicle License Suspension Proceedings, Of Evidence Obtained By Unlawful Search And Seizure, 23 A.L.R. 5th 108
Validity And Application Of Statute Or Regulation Authorizing Revocation Or Suspension Of Driver’s License For Reason Unrelated To Use Of, Or Ability To Operate, Motor Vehicle, 18 A.L.R. 5th 542
Automobiles: Necessity Or Emergency As Defense In Prosecution For Driving Without Operator’s License Or While License Is Suspended, 7 A.L.R. 5th 73
Validity, Construction, Application, And Effect Of Statute Requiring Conditions, In Addition To Expiration Of Time, For Reinstatement Of Suspended Or Revoked Driver’s License, 2 A.L.R. 5th 725
Automobiles: Validity And Construction Of Legislation Authorizing Revocation Or Suspension Of Operator’s License For “Habitual”, “Persistent”, Or “Frequent” Violations Of Traffic Regulations, 48 A.L.R. 4th 367
Construction And Effect Of Statutes Which Make Parent, Custodian, Or Other Person Signing Minor’s Application For Vehicle Operator’s License Liable For Licensee’s Negligence Or Willful Misconduct, 45 A.L.R. 4th 87

Treatises and Practice Aids

Nichols Drinking/Driving Litigation: Criminal and Civil (2d ed.) §§ 7:1 to 7:25, 8:1 to 8:5, 9:14, 9:27, 11:1, 11:16 to 11:19, 11:30, 11:37

END OF SECTION
60 C.J.S. Motor Vehicles § 263

Corpus Juris Secundum
Motor Vehicles
By John Bourdeau, J.D., Paul Coltoff, J.D., Edward K. Esping, J.D., of Professional Publishing Associates, Inc., John R. Kennel, J.D. of the staff of the National Legal Research Group, Inc., Sonja Larsen, J.D., Lucas Martin, J.D., Thomas Muskus, J.D., Charles Nagy, J.D., Carmela Pellegrino, J.D., Eric C. Surette, J.D., Susan L. Thomas, J.D., of Professional Publishing Associates, Inc.
V. License and Regulation of Drivers or Chauffeurs
A. Control and Regulation
3. Persons Subject to License Regulations
a. In General

Topic Summary  Correlation Table 

§ 263. Chauffeur or operator
AutomobilesKey Symbol129, 130, 132 to 137
A distinction is sometimes recognized between an operator and a chauffeur, as “chauffeur” often refers to one who is paid for driving an automobile.
In some jurisdictions, a distinction is made between a chauffeur and an operator. An operator is any person, other than a chauffeur, who operates or drives a motor vehicle.[Foot Note 1] A person need not be a chauffeur in order to secure a chauffeur’s license.[Foot Note 2] The fact that a driver holds such a license does not necessarily make such driver a chauffeur, unless he or she receives pay for the services.[Foot Note 3] Therefore, one who holds a chauffeur’s license, but is not a chauffeur, and who drives upon the highway may be just an operator.[Foot Note 4]

The term chauffeur has a general meaning, as well as a restrictive meaning.[Foot Note 5] In the general sense, a chauffeur is one who operates and propels,[Foot Note 6] or drives and operates,[Foot Note 7] or manages the running of,[Foot Note 8] an automobile. In a more restricted sense, a chauffeur is a person who drives an automobile for hire.[Foot Note 9] Chauffeur may also have different meanings, dependent on the terms of the statutory provision in which it appears.[Foot Note 10] As used in regulations requiring a person who desires to operate a motor vehicle as a chauffeur, or as a paid operator, first to obtain a chauffeur’s or driver’s license, it means a paid operator or employee, that is, a person who is employed and paid by the owner of a motor vehicle to drive and attend to the car.[Foot Note 11] In such case, the term chauffeur does not include operators who are not employed and paid for operating the motor vehicle.[Foot Note 12] Moreover, it does not include an employee who receives his or her compensation for services rendered, other than the operation of motor vehicles, although in performing such services he or she may incidentally operate a motor vehicle.[Foot Note 13] An employee of a public utility, who incidentally uses a motor vehicle in his or her business of repair, is not a chauffeur, and is not required to obtain a chauffeur’s license.[Foot Note 14] There is, however, authority to the contrary.[Foot Note 15]

Owner as driver.

An owner of a motor vehicle who has obtained an operator’s license may not, unless otherwise permitted, drive his or her vehicle as a public service vehicle for hire without a chauffeur’s license.[Foot Note 16] An owner who acts as an independent contractor in the operation of his or her vehicle is not, however, required to take out a chauffeur’s license.[Foot Note 17] This includes a person who, in delivering goods for one person, drives a motor vehicle which he or she has borrowed from a third person.[Foot Note 18]
    [Foot Note 1] Cal.—Sogawa v. Department of Motor Vehicles, 100 Cal. App. 2d 181, 223 P.2d 269 (2d Dist. 1950).

    [Foot Note 2] Cal.—Sogawa v. Department of Motor Vehicles, 100 Cal. App. 2d 181, 223 P.2d 269 (2d Dist. 1950).

    [Foot Note 3] Cal.—Sogawa v. Department of Motor Vehicles, 100 Cal. App. 2d 181, 223 P.2d 269 (2d Dist. 1950).

    Whether driver is chauffeur dependent on terms of applicable statutory provision, see § 263.

    [Foot Note 4] Cal.—Sogawa v. Department of Motor Vehicles, 100 Cal. App. 2d 181, 223 P.2d 269 (2d Dist. 1950).

    [Foot Note 5] La.—Day v. Bush, 18 La. App. 682, 139 So. 42 (2d Cir. 1932).

    [Foot Note 6] Mo.—State v. Swagerty, 203 Mo. 517, 102 S.W. 483 (1907).

    [Foot Note 7] Ill.—Christy v. Elliott, 216 Ill. 31, 74 N.E. 1035 (1905).

    [Foot Note 8] Neb.—Woodring v. Commercial Cas. Ins. Co. of Newark, N.J., 122 Neb. 734, 241 N.W. 285 (1932).

    [Foot Note 9] Neb.—Woodring v. Commercial Cas. Ins. Co. of Newark, N.J., 122 Neb. 734, 241 N.W. 285 (1932).

    [Foot Note 10] Ala.—Turner v. State, 226 Ala. 269, 146 So. 601 (1933).

    Uniformed patrolmen not chauffeurs

    Mo.—State ex rel. Beach v. Beach, 325 Mo. 175, 28 S.W.2d 105 (1930).
    American soldier not chauffeur

    Tex.—American Automobile Ins. Co. v. Struwe, 218 S.W. 534 (Tex. Civ. App. San Antonio 1920), writ refused, (Apr. 6, 1921).

    [Foot Note 11] U.S.—State of Md. for Use of Weaver v. O’Brien, 140 F. Supp. 306 (D. Md. 1956).

    Test

    U.S.—Maryland Cas. Co. v. Cronholm, 32 F. Supp. 375 (S.D. Tex. 1940), judgment aff’d on other grounds, 116 F.2d 494 (C.C.A. 5th Cir. 1940).

    [Foot Note 12] Ky.—Winslow v. Everson, 221 Ky. 430, 298 S.W. 1084 (1927).

    [Foot Note 13] W.Va.—State v. Wimmer, 117 W. Va. 498, 186 S.E. 133, 105 A.L.R. 67 (1936).

    Services of son

    Cal.—Hunton v. California Portland Cement Co., 50 Cal. App. 2d 684, 123 P.2d 947 (4th Dist. 1942).

    [Foot Note 14] N.Y.—People v. Dennis, 166 N.Y.S. 318 (County Ct. 1915).

    [Foot Note 15] N.Y.—People v. Fulton, 96 Misc. 663, 162 N.Y.S. 125 (County Ct. 1916).

    [Foot Note 16] Mo.—Stack v. General Baking Co., 283 Mo. 396, 223 S.W. 89 (1920).

    Chauffeur defined

    Tex.—Peniche v. Aeromexico, 580 S.W.2d 152 (Tex. Civ. App. Houston 1st Dist. 1979).

    [Foot Note 17] N.Y.—People v. Ritter, 120 Misc. 852, 200 N.Y.S. 816 (County Ct. 1922).

    [Foot Note 18] Ind.—A. E. Norris Coal Co. v. Jackson, 80 Ind. App. 423, 141 N.E. 227 (Div. 1 1923).

 CJS MOTORVEH § 263

END OF SECTION

 

NOTES ON POLICE POWER

Corpus Juris Secundum

Constitutional Law
by Francis Amendola, J.D.; John Bourdeau, J.D.; Paul M. Coltoff, J.D.; John Dvorske, J.D.; John Glenn, J.D.; Glenda K. Harnad, J.D., of the staff of the National Legal Research Group, Inc.; John Kennel, J. D., of the staff of the National Legal Research Group, Inc.; Sonja Larsen, J.D.; Stephen Lease, J.D.; Jack K. Levin, J.D.; Richard J. Link, J.D.; Lucas Martin, J.D.; Thomas Muskus, J.D.; Karl Oakes, J.D.; Kimberly Simmons, J.D.; Eric C. Surette, J.D.; Carmela Pellegrino, J.D.; Barbara Van Arsdale, J.D.; Elizabeth Williams, J. D.; Lisa Zakolski, J.D.
VIII. Police Power
A. In General

Topic Summary  References 

§   610. Nature of power

 Constitutional Law   81

The police power is a governmental function, an inherent attribute of sovereignty, which exists without any reservation in the constitution as an essential element in all orderly governments.

 The police power is a governmental function,[FN1] an inherent attribute of sovereignty,[FN2] and the greatest and most powerful attribute of government.[FN3] Although the basis of the police power lies in the constitution which regards the public welfare, safety, and health of the citizens of the state,[FN4] and although it may be given to the people of the state by the constitution,[FN5] the power exists without any reservation in the constitution,[FN6] being founded on the duty of the state to protect the health, safety, and welfare of its citizens.[FN7]

The police power, in its nature, is very broad and comprehensive,[FN8] and the laws enacted for the purpose of regulation thereunder may be impolitic, harsh, and oppressive.[FN9] It corresponds to the right of self-preservation in the individual,[FN10] and is an essential element in all orderly governments,[FN11] because it is necessary to the proper maintenance of the government and the general welfare of the community.[FN12]

The power comprehends reasonable preventative measures no less than the punishment of perpetrated offenses,[FN13] and it may act to prevent apprehended dangers as well as to control those already existing.[FN14] The police power depends on the security of social order, the life and health of the citizen, the comfort of an existence in a thickly populated community, the enjoyment of private and social life, and the beneficial use of property, and it has been said to be the very foundation on which our social system rests.[FN15] It has for its object the improvement of economic[FN16] and social conditions affecting the community at large and collectively with a view of bringing about “the greatest good of the greatest number.”[FN17]

The constitution presupposes the existence of the police power and is to be construed with reference to that fact,[FN18] and police regulations presuppose conditions which, unless controlled, will operate to a public disadvantage.[FN19]

 [FN1] U.S.—Aldens, Inc. v. LaFollette, 552 F.2d 745 (7th Cir. 1977).

Ala.—City of Decatur v. Robinson, 251 Ala. 99, 36 So. 2d 673 (1948).

[FN2] U.S.—City of El Paso v. Simmons, 379 U.S. 497, 85 S. Ct. 577, 13 L. Ed. 2d 446 (1965).

Cal.—Pleasant Hill Bayshore Disposal, Inc. v. Chip-It Recycling, Inc., 91 Cal. App. 4th 678, 110 Cal. Rptr. 2d 708 (1st Dist. 2001), as modified on denial of reh’g, (Sept. 13, 2001).

Colo.—CF & I Steel, L.P. v. United Steel Workers of America (USWA), 74 P.3d 513 (Colo. Ct. App. 2003).

Okla.—Fine Airport Parking, Inc. v. City of Tulsa, 2003 OK 27, 71 P.3d 5 (Okla. 2003).

Exercise not dependent on emergency

Police power is permanent right of sovereignty, and its exercise is not dependent on emergency.

N.J.—In re North Jersey Title Ins. Co., 120 N.J. Eq. 148, 184 A. 420 (Ch. 1936), aff’d, 120 N.J. Eq. 608, 187 A. 146 (Ct. Err. & App. 1936).

[FN3] Pa.—Com. v. Widovich, 295 Pa. 311, 145 A. 295 (1929).

[FN4] U.S.—Ziffrin, Inc. v. Martin, 24 F. Supp. 924 (E.D. Ky. 1938), aff’d, 308 U.S. 132, 60 S. Ct. 163, 84 L. Ed. 128 (1939) (abrogated on other grounds by, Granholm v. Heald, 125 S. Ct. 1885, 161 L. Ed. 2d 796 (U.S. 2005)).

[FN5] Vt.—Sowma v. Parker, 112 Vt. 241, 22 A.2d 513 (1941).

[FN6] Ohio—Vincent v. Elyria Bd. of Ed., 7 Ohio App. 2d 58, 36 Ohio Op. 2d 151, 218 N.E.2d 764 (9th Dist. Lorain County 1966).

Tex.—Martin v. Wholesome Dairy, Inc., 437 S.W.2d 586 (Tex. Civ. App. Austin 1969), writ refused n.r.e., (June 25, 1969).

Wash.—Reesman v. State, 74 Wash. 2d 646, 445 P.2d 1004 (1968).

Not referable to any single provision

Md.—Smith v. Higinbothom, 187 Md. 115, 48 A.2d 754 (1946).

[FN7] Md.—Linkus v. Maryland State Bd. of Heating Ventilation, Air-Conditioning and Refrigeration Contractors, 114 Md. App. 262, 689 A.2d 1254 (1997).

N.M.—In re McCain, 84 N.M. 657, 506 P.2d 1204 (1973).

Tex.—Jefco, Inc. v. Lewis, 520 S.W.2d 915 (Tex. Civ. App. Austin 1975), writ refused n.r.e., (July 23, 1975).

Duty to act

(1) Legislature has a duty to enact laws providing for general welfare and safety of people within state.

Ind.—State ex rel. Mavity v. Tyndall, 225 Ind. 360, 74 N.E.2d 914 (1947).

(2) There is no constitutional provision which imposes a duty on a state to provide services to its citizens.

U.S.—New York State Ass’n for Retarded Children, Inc. v. Rockefeller, 357 F. Supp. 752 (E.D. N.Y. 1973).

Public necessity

Police power is founded in public necessity, which justifies its exercise.

Conn.—State v. Heller, 123 Conn. 492, 196 A. 337 (1937).

[FN8] N.Y.—Dobrzenski v. Village of Hamburg, 277 A.D.2d 1005, 715 N.Y.S.2d 819 (4th Dep’t 2000).

Okla.—State v. Nevins, 1980 OK CR 30, 611 P.2d 251 (Okla. Crim. App. 1980).

W. Va.—State ex rel. Barker v. Manchin, 167 W. Va. 155, 279 S.E.2d 622 (1981).

Almost infinite variety of subjects embraced

U.S.—Universal Interpretive Shuttle Corp. v. Washington Metropolitan Area Transit Commission, 393 U.S. 186, 89 S. Ct. 354, 21 L. Ed. 2d 334 (1968).

[FN9] Cal.—D’Amico v. Brock, 122 Cal. App. 2d 63, 264 P.2d 120 (3d Dist. 1953).

Iowa—Jacobs v. City of Chariton, 245 Iowa 1378, 65 N.W.2d 561 (1954).

W.Va.—State ex rel. Morris v. West Virginia Racing Commission, 133 W. Va. 179, 55 S.E.2d 263 (1949).

Strict liability

In exercise of power, state may impose liability without fault.

Ala.—Walker v. State, 356 So. 2d 672 (Ala. 1977).

[FN10] U.S.—Panhandle Eastern Pipe Line Co. v. State Highway Commission of Kansas, 294 U.S. 613, 55 S. Ct. 563, 79 L. Ed. 1090 (1935).

Ala.—Jones v. State, 56 Ala. App. 280, 321 So. 2d 247 (Crim. App. 1975).

N.Y.—DeLury v. City of New York, 51 A.D.2d 288, 381 N.Y.S.2d 236 (1st Dep’t 1976).

[FN11] U.S.—Comtronics, Inc. v. Puerto Rico Telephone Co., 409 F. Supp. 800 (D.P.R. 1975), judgment aff’d, 553 F.2d 701 (1st Cir. 1977).

Ky.—Roe v. Com., 405 S.W.2d 25 (Ky. 1966).

Wash.—Spokane County v. Valu-Mart, Inc., 69 Wash. 2d 712, 419 P.2d 993 (1966).

Law of necessity

Police power is law of necessity.

N.J.—Jamouneau v. Harner, 16 N.J. 500, 109 A.2d 640 (1954).

[FN12] Ariz.—Transamerica Title Ins. Co. v. City of Tucson, 23 Ariz. App. 385, 533 P.2d 693 (Div. 2 1975).

Tenn.—H & L Messengers, Inc. v. City of Brentwood, 577 S.W.2d 444, 12 A.L.R.4th 835 (Tenn. 1979).

Tex.—Texas State Bd. of Pharmacy v. Gibson’s Discount Center, Inc., 541 S.W.2d 884 (Tex. Civ. App. Austin 1976), writ refused n.r.e., (Mar. 9, 1977).

[FN13] U.S.—Jung v. City of Winona, 71 F. Supp. 558 (D. Minn. 1947).

N.J.—State v. Gaynor, 119 N.J.L. 582, 197 A. 360 (N.J. Ct. Err. & App. 1938).

Assumptions unprovable or unproved

(1) Unprovable assumption may be acted on by states in areas of public control.

U.S.—Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S. Ct. 2628, 37 L. Ed. 2d 446 (1973).

(2) Legislatures properly may rely on scientifically unproven assumptions both in regulation of commercial and business transactions and for protection of broad social interests in order and morality.

D.C.—U. S. v. Moses, 339 A.2d 46 (D.C. 1975).

Blocking evasive techniques

In area of regulation, statute may push beyond debatable limits in order to block evasive techniques.

Cal.—Sacramento Newspaper Guild v. Sacramento County Bd. of Sup’rs, 263 Cal. App. 2d 41, 69 Cal. Rptr. 480 (3d Dist. 1968).

[FN14] U.S.—Gitlow v. People of State of New York, 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138 (1925).

Colo.—People v. Hoehl, 193 Colo. 557, 568 P.2d 484 (1977).

N.Y.—McCallin v. Walsh, 64 A.D.2d 46, 407 N.Y.S.2d 852 (1st Dep’t 1978), order aff’d, 46 N.Y.2d 808, 413 N.Y.S.2d 922, 386 N.E.2d 833 (1978).

Delayed impact

Authority of state to control activities of its citizens is not limited to activities which have a present and immediate impact on public health or welfare.

Alaska—Ravin v. State, 537 P.2d 494 (Alaska 1975).

Possession of devices or products

Mere possession of dangerous or deleterious devices or products may be forbidden by state under its police powers.

D.C.—Smith v. District of Columbia, 436 A.2d 53 (D.C. 1981).

[FN15] Ga.—De Berry v. City of La Grange, 62 Ga. App. 74, 8 S.E.2d 146 (1940).

N.C.—State v. McGee, 237 N.C. 633, 75 S.E.2d 783 (1953).

Va.—Mumpower v. Housing Authority of City of Bristol, 176 Va. 426, 11 S.E.2d 732 (1940).

Giving up rights for public benefit

Power to pass laws regulating persons and property stems from theory that when persons choose to live in groups they must give up some individual freedom for good of group.

La.—City of Shreveport v. Curry, 357 So. 2d 1078 (La. 1978).

[FN16] Wis.—Gross v. Woodman’s Food Market, Inc., 259 Wis. 2d 181, 2002 WI App 295, 655 N.W.2d 718 (Ct. App. 2002), review denied, 2003 WI 32, 260 Wis. 2d 752, 661 N.W.2d 100 (2003).

[FN17] Md.—Maryland Coal & Realty Co. v. Bureau of Mines of State, 193 Md. 627, 69 A.2d 471 (1949).

Mich.—People v. Sell, 310 Mich. 305, 17 N.W.2d 193 (1945).

N.C.—Morris v. Holshouser, 220 N.C. 293, 17 S.E.2d 115, 137 A.L.R. 733 (1941).

Interest of public paramount

Fla.—Egan v. City of Miami, 130 Fla. 465, 178 So. 132 (1938).

[FN18] Fla.—McInerney v. Ervin, 46 So. 2d 458 (Fla. 1950).

La.—City of Baton Rouge v. Ross, 654 So. 2d 1311 (La. 1995).

N.D.—State ex rel. City of Minot v. Gronna, 79 N.D. 673, 59 N.W.2d 514 (1953).

[FN19] Ky.—Commonwealth for Use and Ben. of City of Wilmore v. McCray, 250 Ky. 182, 61 S.W.2d 1043 (1933).

Utah—State v. Packer Corporation, 77 Utah 500, 297 P. 1013 (1931).

END OF SECTION

CJS CONSTLAW §  610

Corpus Juris Secundum

Constitutional Law
by Francis Amendola, J.D.; John Bourdeau, J.D.; Paul M. Coltoff, J.D.; John Dvorske, J.D.; John Glenn, J.D.; Glenda K. Harnad, J.D., of the staff of the National Legal Research Group, Inc.; John Kennel, J. D., of the staff of the National Legal Research Group, Inc.; Sonja Larsen, J.D.; Stephen Lease, J.D.; Jack K. Levin, J.D.; Richard J. Link, J.D.; Lucas Martin, J.D.; Thomas Muskus, J.D.; Karl Oakes, J.D.; Kimberly Simmons, J.D.; Eric C. Surette, J.D.; Carmela Pellegrino, J.D.; Barbara Van Arsdale, J.D.; Elizabeth Williams, J. D.; Lisa Zakolski, J.D.
XV. Privileges and Immunities of Citizens and Related Matters
C. Denial of Privileges and Immunities
2. Police Power and Regulation

Topic Summary  References 

§   1067. State’s exercise of police power

 Constitutional Law   206(1), 207(1), 207(6)

While a state, in the exercise of its police power, may pass laws for the health, morals, safety, and general welfare of persons within its jurisdiction, such exercise of power must not discriminate arbitrarily between citizens.

 Neither the guaranty contained in the original United States Constitution of the privileges and immunities of citizens of the several states, nor that contained in the Fourteenth Amendment, takes away or impairs the police power of the several states to pass reasonable laws for the promotion of the health, morals, safety, and general welfare of persons subject to their jurisdiction.[FN1] The privileges and immunities clause applies only to protect citizens of one state from discriminatory treatment in another state, and does not limit the state’s police power over its own citizens.[FN2]

It has been held that the privileges and immunities clauses have no application to statutes enacted in the exercise of that power.[FN3] On the other hand, it has been held that the police power is subject to the constitutional guaranty of equality of privilege,[FN4] and an exercise of the police power must not arbitrarily discriminate between citizens.[FN5] Nevertheless, the protections afforded by constitutional clauses protecting privileges and immunities of citizens are not absolute and will yield to reasonable exercise of state police powers.[FN6]

While in the matter of police regulation, the powers of the state are very broad, it cannot single out a corporation, any more than a natural person, and subject it to burdens which are not cast on others similarly situated, without contravening the limitations of the Fourteenth Amendment of the Federal Constitution.[FN7]

 [FN1] U.S.—Sullivan v. Shaw, 6 F. Supp. 112 (S.D. Cal. 1934).

Fla.—Stephens v. Stickel, 146 Fla. 104, 200 So. 396 (1941).

Mo.—State ex rel. Becker v. Wellston Sewer Dist. of St. Louis County, 332 Mo. 547, 58 S.W.2d 988 (1933).

N.Y.—People ex rel. Bryant v. Zimmerman, 213 A.D. 414, 210 N.Y.S. 269 (4th Dep’t 1925), aff’d, 241 N.Y. 405, 150 N.E. 497, 43 A.L.R. 909 (1926), aff’d, 278 U.S. 63, 49 S. Ct. 61, 73 L. Ed. 184, 62 A.L.R. 785 (1928).

Or.—Daniels v. City of Portland, 124 Or. 677, 265 P. 790, 59 A.L.R. 512 (1928).

Tenn.—Mensi v. Walker, 160 Tenn. 468, 26 S.W.2d 132 (1930).

W.Va.—Tweel v. West Virginia Racing Commission, 138 W. Va. 531, 76 S.E.2d 874 (1953).

[FN2] Me.—State v. Hayes, 603 A.2d 869 (Me. 1992).

[FN3] Wash.—Frach v. Schoettler, 46 Wash. 2d 281, 280 P.2d 1038 (1955).

[FN4] N.C.—State v. Scoggin, 236 N.C. 1, 72 S.E.2d 97 (1952).

[FN5] Ind.—City of Richmond v. Dudley, 129 Ind. 112, 28 N.E. 312 (1891).

S.C.—Schloss Poster Advertising Co. v. City of Rock Hill, 190 S.C. 92, 2 S.E.2d 392 (1939).

[FN6] Mont.—State v. Barnes, 232 Mont. 405, 758 P.2d 264 (1988).

[FN7] U.S.—Southern Bell Tel. & Tel. Co. v. Town of Calhoun, 287 F. 381 (W.D. S.C. 1923).

END OF SECTION

CJS CONSTLAW §  1067

Corpus Juris Secundum

Constitutional Law
by Francis Amendola, J.D.; John Bourdeau, J.D.; Paul M. Coltoff, J.D.; John Dvorske, J.D.; John Glenn, J.D.; Glenda K. Harnad, J.D., of the staff of the National Legal Research Group, Inc.; John Kennel, J. D., of the staff of the National Legal Research Group, Inc.; Sonja Larsen, J.D.; Stephen Lease, J.D.; Jack K. Levin, J.D.; Richard J. Link, J.D.; Lucas Martin, J.D.; Thomas Muskus, J.D.; Karl Oakes, J.D.; Kimberly Simmons, J.D.; Eric C. Surette, J.D.; Carmela Pellegrino, J.D.; Barbara Van Arsdale, J.D.; Elizabeth Williams, J. D.; Lisa Zakolski, J.D.
XVI. Equal Protection of the Laws
B. Nature and Scope of Prohibitions

Topic Summary  References 

§   1115. Exercise of police power

 Constitutional Law   212

The prohibition of the Fourteenth Amendment against denial of equal protection of the laws does not deprive the states, or the political subdivisions thereof, of their power, commonly called the police power, to pass laws for the protection of the public health, safety, welfare, or morals.

 The prohibition of the Fourteenth Amendment against denial of equal protection of the laws does not deprive the states, or the political subdivisions thereof, of their power, commonly called the police power,[FN1] to pass laws for the protection of the public health, safety, welfare, or morals,[FN2] and indeed, the state has wide discretion to do so under the equal protection clause.[FN3] Furthermore, it does not interfere with the proper exercise of that power.[FN4]

However, according to the weight of authority, an exercise of the police power is subject to the constitutional limitation that no state shall deny the equal protection of the laws to any person within its jurisdiction;[FN5] and the Fourteenth Amendment invalidates enactments that are arbitrary, unreasonable, and unrelated to the public purpose sought to be attained.[FN6] In other words, equal protection requires that the exercise of police power be wholly free of unreason and arbitrariness.[FN7] It is necessary that a police regulation shall apply equally or uniformly to all persons similarly situated or within a class.[FN8] Thus, the lawmaking authority may, under its police power, enact regulations that are not all-embracing, and it may legislate with reference to degrees of evil and to situations in which the evil is demonstrably more harmful, without denying equal protection of the law;[FN9] but an exercise of the police power must not be discriminatory in operation.[FN10]

The equal protection clause of the Fourteenth Amendment to the Federal Constitution does not take from a state or municipal corporation the power to classify in the adoption of police laws or regulations,[FN11] but admits of the exercise of a wide or broad scope of discretion in that regard.[FN12]

 [FN1] Del.—In re Auditorium, Inc., 46 Del. 430, 84 A.2d 598 (Super. Ct. 1951).

[FN2] Fla.—Florida League of Cities, Inc. v. Department of Environmental Regulation, 603 So. 2d 1363 (Fla. Dist. Ct. App. 1st Dist. 1992).

Ohio—St. Ann’s Hosp. v. Arnold, 109 Ohio App. 3d 562, 672 N.E.2d 743 (10th Dist. Franklin County 1996).

Pa.—Pennsylvania Turnpike Com’n v. Com., 855 A.2d 923 (Pa. Commw. Ct. 2004), as amended, (Aug. 4, 2004).

[FN3] U.S.—Lee v. State, 869 F. Supp. 1491 (D. Or. 1994).

Colo.—Buckley Powder Co. v. State, 70 P.3d 547 (Colo. Ct. App. 2002), cert. denied, 2003 WL 21222805 (Colo. 2003) and cert. denied, (May 27, 2003).

[FN4] U.S.—Lacoste v. Department of Conservation of State of Louisiana, 263 U.S. 545, 44 S. Ct. 186, 68 L. Ed. 437 (1924); Chambers v. Bachtel, 55 F.2d 851 (C.C.A. 5th Cir. 1932).

Kan.—Manzanares v. Bell, 214 Kan. 589, 522 P.2d 1291 (1974).

[FN5] U.S.—Oyama v. California, 332 U.S. 633, 68 S. Ct. 269, 92 L. Ed. 249 (1948); Szeto v. Louisiana State Bd. of Dentistry, 508 F. Supp. 268 (E.D. La. 1981).

Fla.—Junco v. State Bd. of Accountancy, 390 So. 2d 329 (Fla. 1980).

[FN6] Ill.—Rawlings v. Illinois Dept. of Law Enforcement, 73 Ill. App. 3d 267, 29 Ill. Dec. 333, 391 N.E.2d 758 (3d Dist. 1979).

[FN7] N.J.—515 Associates v. City of Newark, 132 N.J. 180, 623 A.2d 1366 (1993).

[FN8] U.S.—Alabama State Federation of Labor, Local Union No. 103, United Broth. of Carpenters and Joiners of America v. McAdory, 325 U.S. 450, 65 S. Ct. 1384, 89 L. Ed. 1725 (1945); Berry v. Arapahoe and Shoshone Tribes, 420 F. Supp. 934 (D. Wyo. 1976).

Cal.—Elysium Institute, Inc. v. County of Los Angeles, 232 Cal. App. 3d 408, 283 Cal. Rptr. 688 (2d Dist. 1991).

Neb.—Distinctive Printing and Packaging Co. v. Cox, 232 Neb. 846, 443 N.W.2d 566 (1989).

[FN9] Fla.—Pacheco v. Pacheco, 246 So. 2d 778 (Fla. 1971).

[FN10] U.S.—Shelley v. Kraemer, 334 U.S. 1, 68 S. Ct. 836, 92 L. Ed. 1161, 3 A.L.R.2d 441 (1948).

Ariz.—State v. Norcross, 26 Ariz. App. 115, 546 P.2d 840 (Div. 1 1976).

[FN11] U.S.—Morey v. Doud, 354 U.S. 457, 77 S. Ct. 1344, 1 L. Ed. 2d 1485 (1957) (overruled on other grounds by, City of New Orleans v. Dukes, 427 U.S. 297, 96 S. Ct. 2513, 49 L. Ed. 2d 511 (1976)); Queenside Hills Realty Co. v. Saxl, 328 U.S. 80, 66 S. Ct. 850, 90 L. Ed. 1096 (1946).

Tenn.—Wyatt v. A-Best Products Co., 924 S.W.2d 98 (Tenn. Ct. App. 1995), as modified on reh’g, (Dec. 28, 1995).

As to legislative classifications, generally, see §  1110.

[FN12] U.S.—City of Cleburne, Tex. v. Cleburne Living Center, 473 U.S. 432, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985); Morey v. Doud, 354 U.S. 457, 77 S. Ct. 1344, 1 L. Ed. 2d 1485 (1957) (overruled on other grounds by, City of New Orleans v. Dukes, 427 U.S. 297, 96 S. Ct. 2513, 49 L. Ed. 2d 511 (1976)); Alamo Rent-A-Car, Inc. v. Sarasota-Manatee Airport Authority, 825 F.2d 367 (11th Cir. 1987).

Ill.—People v. Toliver, 251 Ill. App. 3d 1092, 191 Ill. Dec. 290, 623 N.E.2d 880 (2d Dist. 1993).

Tenn.—Wyatt v. A-Best Products Co., 924 S.W.2d 98 (Tenn. Ct. App. 1995), as modified on reh’g, (Dec. 28, 1995).

END OF SECTION

CJS CONSTLAW §  1115

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Do police in Illinois have to obey traffic laws?

I’ve had this asked more than once, so I felt it best to put the matter to rest. I’ve seen many police vehicles going through red lights, speeding, making u-turns…. and not displaying flashing lights or a siren. What is the “statutory” requirement for “emergency vehicles” when it comes to obeying traffic laws? Well…..

(625 ILCS 5/11-205) (from Ch. 95 1/2, par. 11-205)
Sec. 11-205. Public officers and employees to obey Act-Exceptions.
(a) The provisions of this Chapter applicable to the drivers of vehicles upon the highways shall apply to the drivers of all vehicles owned or operated by the United States, this State or any county, city, town, district or any other political subdivision of the State, except as provided in this Section and subject to such specific exceptions as set forth in this Chapter with reference to authorized emergency vehicles.
(b) The driver of an authorized emergency vehicle, when responding to an emergency call or when in the pursuit of an actual or suspected violator of the law or when responding to but not upon returning from a fire alarm, may exercise the privileges set forth in this Section, but subject to the conditions herein stated.
(c) The driver of an authorized emergency vehicle may:
1. Park or stand, irrespective of the provisions of this Chapter;
2. Proceed past a red or stop signal or stop sign, but only after slowing down as may be required and necessary for safe operation;
3. Exceed the maximum speed limits so long as he does not endanger life or property;
4. Disregard regulations governing direction of movement or turning in specified directions.
(d) The exceptions herein granted to an authorized emergency vehicle, other than a police vehicle, shall apply only when the vehicle is making use of either an audible signal when in motion or visual signals meeting the requirements of Section 12-215 of this Act.
(e) The foregoing provisions do not relieve the driver of an authorized emergency vehicle from the duty of driving with due regard for the safety of all persons, nor do such provisions protect the driver from the consequences of his reckless disregard for the safety of others.
(f) Unless specifically made applicable, the provisions of this Chapter, except those contained in Section 11-204 and Articles IV and V of this Chapter, shall not apply to persons, motor vehicles and equipment while actually engaged in work upon a highway but shall apply to such persons and vehicles when traveling to or from such work.
(Source: P.A. 89-710, eff. 2-14-97; 90-257, eff. 7-30-97.)

http://www.ilga.gov/legislation/ilcs/ilcs5.asp?ActID=1815&ChapterID=49

 

So, what is an “authorized emergency vehicle”?

(625 ILCS 5/1-105) (from Ch. 95 1/2, par. 1-105)
Sec. 1-105. Authorized emergency vehicle. Emergency vehicles of municipal departments or public service corporations as are designated or authorized by proper local authorities; police vehicles; vehicles of the fire department; vehicles of a HazMat or technical rescue team authorized by a county board under Section 5-1127 of the Counties Code; ambulances; vehicles of the Illinois Emergency Management Agency; vehicles of the Office of the Illinois State Fire Marshal; mine rescue and explosives emergency response vehicles of the Department of Natural Resources; vehicles of the Illinois Department of Public Health; and vehicles of a municipal or county emergency services and disaster agency, as defined by the Illinois Emergency Management Agency Act.
(Source: P.A. 96-214, eff. 8-10-09; 96-986, eff. 1-1-11; 96-1190, eff. 7-22-10; 97-149, eff. 7-14-11; 97-333, eff. 7-12-11.)

http://www.ilga.gov/legislation/ilcs/ilcs5.asp?ActID=1815&ChapterID=49

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Judge Brian Babka Dodges the Issue of Issuing Arrest Warrants Against Police. Case 10-MR-212 is Dismissed…..for now….

I must admit that I may have been Pollyanna in assuming a judicial officer in St. Clair County, Illinois would faithfully execute the duties of his office. I received word, through a judicial order, on 6/25/11, that a case I was hoping would afford an unbiased and fair examination of the facts was officially dismissed.

BACKGROUND

Upon my persistence in bringing sworn criminal complaints before a court, where the State’s Attorney and police agencies had refused to act due to the charges involving crimes by police officers, I was met at the Circuit Clerk’s Office in St. Clair County, Illinois by Brendan Kelly, the then Clerk of the Circuit Court. On June 17, 2010, I was at the Circuit Clerk’s office making another attempt at filing criminal complaints against Fairview Heights, Illinois police officers Joshua Alemond and Aaron Nyman. I was acting under the direction of Judge Randall Kelly, who imparted to me that a private individual can bring a complaint for a violation of law. Footnote 1 The clerks refused to file my complaints, stating they were unfamiliar with any filing that would address criminal complaints. Upon my insistence, they directed the matter to Brendan Kelly, the Clerk of the Circuit Court, who personally came into the hallway in front of the clerk’s office to meet with me. I explained the situation to him and he then offered to personally take the complaints and determine the best way to address them and to file them, if such action was within his power to do so.  Footnote 2

Mr. Kelly and I communicated over email and voice mail over a week or so. In Mr. Kelly’s email, he make reference to “package of information which you describe as felonies was also similarly file stamped- on August 16, 2010”. What is curious is how this information made it into the file, since I did not deliver to the Clerk any pleadings or documents which needed to be filed. The “package of information” to which Mr. Kelly refers relates to a letter which I sent to Robert Haida, State’s Attorney, John Baricevic, Chief Judge, and Mr. Kelly, Clerk of the Circuit Court. Footnote 3 As a result, Case 10-MR-212, was born. Within that case, are sworn criminal complaints which were delivered to Brendan Kelly on June 17, 2010 and “information” received by him by way of a letter on August 16, 2010. There has been no communication from either the State’s Attorney or Chief Judge in the matter. Something else to consider, as there are fees for every filing with the Circuit Clerk, in this case, a Miscellaneous Remedy, the fee is $246. There was no filing fee tendered by me, or anyone else to my knowledge, and how this case came into existence without a fee being remitted is a question for Mr. Brendan Kelly. Was this an abuse of his discretion and violation of law for allowing a case to be filed without the proper fee and secondly, filing a case of his own volition in another party’s name? Footnote 4

Subsequent to Case 10-MR-212 being created on June 17, 2010, it took until December 7, 2010 for a judge to be assigned by Chief Judge John Baricevic. The assignment fell on Judge Brian Babka of the Twentieth Judicial Circuit. I appeared on February 24, 2011 before Judge Brian Babka. At that initial hearing,  Judge Brian Babka expressed his bemusement about the file contents, which were the criminal complaints filed by Brendan Kelly, being before him in a miscellaneous remedy court. I likewise expressed confusion and explained to Judge Babka that it was not I who filed the case, nor remitted a filing fee. I explained it was Mr. Kelly who acted on my behalf. Judge Babka proceeded to engage me as to what I hoped to achieve and I explained that I believed it was possible to bring charges to a court without the aid of police of the State’s Attorney. When asked by what authority I came to hold such belief I provided the citation for Lindquist v. Friedmans, Inc. Footnote 5 Babka said he would take the case under advisement and review the cited case, following up with a subsequent hearing.

I appeared again before Judge Babka on May 12, 2011. He was cordial and friendly. He told me that the Lidquist case was still good law, but dwelled on the courts use of the word “magistrate” since that case was from 1937. He said that he did not believe there were any “magistrates” to present complaints to and therefore the law, albeit still good, had been rendered moot by the elimination of magistrates. Footnote 5 He said that I may want to channel my energies in other directions rather than going down “blind alleys” in pursuing criminal complaints. He recommended, instead, pursuing civil remedies. He said that the law has become too “automated”, and the process for bringing charges now rests with the State’s Attorney or police. I respectfully disagreed and said that I do  not believe the clear language of the statute would allude to the remedy I sought to only be neutered by the removal of a judicial officer required for carrying it into effect. He said he would keep the case open and set it for another status in a year, but if I found anything to further support my claim or otherwise clarify the “magistrate” issue, I could present it to the court for his review.

DISCUSSION

On June 13, 2011, I filed a Memorandum of Law for Case 10-MR-212, in response to Judge Babka’s interpretation of Lindquist and his acknowledgement of that case not having been overturned by any subsequent Illinois Appellate decision; and in that Memorandum I requested a hearing on the issues therein raised.  Footnote 6 Not only did I further clarify the issue raised by Lindquist regarding the fate of former magistrates, who merely were renamed to “associate judges” under the Illinois Constitution of 1970 and who still retain the power to issue warrants of arrest, I elaborated on the right of an individual to bring charges without the aid of police or State’s Attorney, not resting the entire argument upon Lindquist, but citing other authorities as well. Footnote 6

On June 25, 2011, I received an Order from Judge Babka which was entered on June 20, 2011, in response to my Memorandum and essentially dismissing the case. Footnote 7 In his Order, Babka does not address any of the issues presented, aside from the holding in Lindquist as being a case from 1937, which he said was still good law, and attempting to distinguish that holding with one from People Ex Rel. Daley v. Moran, 94Ill. 2d 41, 445N.E. 2d, 67, Ill. Dec 790. Footnote 8 I contend that the Daley case is not on point for purposes of my argument. I do aver, in my Memorandum, that the State’s Attorney has sole discretion in whether to prosecute, but prosecution and arrest are two different matters. Footnote 9 Within the separation of powers doctrine, only the judiciary has the power to issue warrants of arrest, and the State’s Attorney has the power to pursue prosecution. Footnote 10

Reviewing the Daley case, it seems a judge attempted to direct a State’s Attorney to file an information relating to an offense, to which the State’s Attorney refused and the court pursued the filing of an information itself, and the State’s Attorney responded with a writ of mandamus expunging the court’s order of the information. What distinguishes Daley from Lindquist is that in Daley the issue of arrest is not in controversy. The defendants in Daley were involved in possible plea negotiations over a charge of aggravated battery, and had already been arrested through a complaint brought by the complainant, a police officer. Footnote 11 What has happened in that case is upon arrest, defendants are entitled to a preliminary examination for determining if probable cause exists, and if so, to be held to answer and post bail. Footnote 12 Of course, for this to take place, the defendant must first be arrested, and whether or not a prosecutor proceeds with or declines prosecution, there must first be a warrant issued for the court to ever acquire jurisdiction, which requires a complaint, information, or indictment. Footnote 13 In Daley, the defendants had been charged by complaint and then engaged in plea negotiations. At that point, the State’s Attorney has discretion in how to proceed with prosecution. In Daley, the court attempted to intervene in that discretion, which prompted the writ of mandamus. In my case, I am attempting to have the officers arrested in order to answer the charge. At that point, the parallel between my case and Daley may be drawn since there would then be an arrest initiated by a judicial officer who then hands the prosecution of the offense to the State’s Attorney. With that in mind, the Order entered by Babka, by his reliance upon Daley, is without merit and off-point for the purposes of having warrants of arrest issued as opposed to prosecutorial discretion.

CONCLUSION

What I have now to consider is, which method do I employ to press this issue? I am considering a motion to reconsider Babka’s Order based on the foregoing, as well as a preemptive letter to the Attorney General. Given the inarticulate and imprecise response from St. Clair County judges to-date, I must also consider a Petition for Writ of Mandamus to the Illinois Supreme Court. Honestly, I question whatever satisfaction this endeavor may afford, even if the officers are arrested and held to answer the charges, reasonably presuming Brendan Kelly will exercise his “prosecutorial discretion” and dismiss the charges. Then again, this is not about prevailing in any prosecution, but rather addressing the fundamental question, viz., are individuals bound exclusively to the whim and whimsy of police and prosecutors when seeking justice, or has the avenue to the judiciary for such matters been completely delegated to the administrative branch? If the State’s Attorney has sole discretion in the bringing of charges, then he holds the power of guilt or no guilt as well for there can be no finding of guilt without prosecution; and without the ability to have the accused answer the charges, we are bound to suffer assault by those with impunity and no fear of retaliation under law should they carry favor with those who wield that power, or refuse to wield it, capriciously.

UPDATE 7/7/11

I will be filing my Motion to Reconsider and Motion for Mandatory Judicial Notice today.

http://markmccoy.com/wp/2011/07/07/motion-to-reconsider-courts-dismissal-of-case-10-mr-212-absent-a-review-of-all-authorities-cited-in-plaintiff%E2%80%99s-memorandum-of-law/

http://markmccoy.com/wp/2011/07/07/motion-for-mandatory-judicial-notice-in-support-of-petitioner%E2%80%99s-motion-to-reconsider/

 

RESEARCH REFERENCES

Footnote 1. Report of Proceedings, Sept. 20, 2009 in the case of People v. Mark McCoy, Randall Kelly presiding, discussion on pages 5 – 6. http://markmccoy.com/Record%20of%20Proceedings%209-30-09%20Second%20Appearance.pdf

 

Footnote 2. Excerpt from email on Thu, 26 Aug 2010 10:39:07 from Brendan Kelly. http://markmccoy.com/wp/2010/09/20/email-tete-a-tete-between-myself-and-brendan-kelly-circuit-clerk-of-st-clair-county/

Mr. McCoy:

The original complaints which you describe as misdemeanors were filed with this office and received a “file stamp” on the date which you filed them- June 17, 2010.  When these documents received a case type assignment and placed into an actual file folder is not relevant to the issue of statute of limitations and does not deprive you of any relief at least in that regard.  Again, the “file stamp” date of June 17, 2010 is the relevant date for those documents- the very day you filed them here.

Since those documents were received and file stamped by a deputized clerk of the court, and since the more recent package of information which you describe as felonies was also similarly file stamped- on August 16, 2010- a record of some type had to be created. That is legal obligation as the Clerk of the Court.  As a matter of course, criminal charges of any type either felony or misdemeanor are initiated by the State’s Attorney or grand jury in our case management system.  Since the documents you filed with my office were not filed by either entity, and because some record was required, those filings were assigned case number 10-MR-212.  MR stands for “miscellaneous remedy.”  A wide variety of legal issues fall into that category and is often the case type used when it may not be clear where a party’s pleadings need to go.  In some circumstances, legal issues in an MR case are later assigned a different case type once the court has made a determination where they belong.

 

Footnote 3. This “package of information” was sent via US Mail, Return Receipt Requested, to Mr. Kelly, Mr. Baricevic, and Mr. Haida. I do not see anywhere in that letter where I express any intent for Mr. Kelly to take the contents and add them to an existing case file that likewise was never filed or authorized by me. http://markmccoy.com/wp/2010/08/20/corruption-in-st-clair-county-illinois-officials-refuse-to-prosecute-police-for-misconduct/

Copy of letter regarding Official Misconduct to Officials

Return receipts for letter of official misconduct

 

Footnote 4. The required fee for a Miscellaneous Remedy case, as specified in the Circuit Clerk’s website http://www.circuitclerk.co.st-clair.il.us/NR/rdonlyres/22141ED7-BD4F-4312-BA2A-A34A0584FDFA/0/FeeBook10122010.pdf

This schedule of fees is designed primarily to give you an outline of the fees that are required in civil and criminal cases.  The fees are established by the Illinois General Assembly and the Circuit Court Clerk is mandated to collect them.  The fees of the St. Clair County Circuit Court Clerk are set forth in the 705 ILCS 105/27.1a and set by resolution of the County Board of St. Clair County in order to continue in effect.
ADMINISTRATIVE REVIEW    MR      FILING FEE   $246.00 ANSWER FEE   $146.00

 

Footnote 5. Discussion on the matter found at http://markmccoy.com/wp/2011/06/06/memorandum-of-law-regarding-private-individual-making-criminal-complaint-and-the-former-office-of-magistrate-in-illinois/

Petitioner has appeared twice before the Honorable Brian Babka in response to this case. In the first appearance, Petitioner made his case for bringing criminal complaints against officers Alemond and Nyman. He presented Judge Babka with a the case of Lindquist v. Friedman’s, Inc. 366 Ill. 232, 8 N.E.2d 625 upon which he relied for bringing charges without the assistance or intervention of a police agency or state’s attorney. Judge Babka reviewed the provided case and met again with the Petitioner in a subsequent status hearing. During that hearing, Judge Babka confirmed the holding in Lindquist as having not been overturned in any subsequent Illinois Appellate Opinions. That case did provide for a private individual bringing a criminal complaint before a “magistrate”.  Judge Babka was unclear on the applicability of the word “magistrate” regarding any judicial officers presently serving, stating that the word appears to apply only to cases of antiquity where such officers were hearing complaints brought before them for the purpose of issuing warrants of arrest. Although the law is still “good law”, it appears the avenue for presentment has changed over time with the elimination of the position of magistrates, therefore rendering this procedure ineffective. The State, appeared to, for some reason, have done away with the position of magistrate and instead instituted procedures for individuals wrestling with such issues to bring their complaints before police agencies or State’s Attorneys.

 

Footnote 6.      Statutory authority: 725 ILCS 5/111‑3725 ILCS 5/107‑9725 ILCS 5/102 8725 ILCS 5/107-7725 ILCS 5/102‑10725 ILCS 5/102‑13 Appellate Opinions: Lindquist v. Friedman’s, Inc. 366 Ill. 232, 8 N.E.2d 625 – Village of Willowbrook v. Miller, App.1966, 72 Ill.App.2d 30, 217 N.E.2d 809, People v. Siex, App.1942, 39 N.E.2d 84, 312 Ill.App. 657 – People v. United States Fidelity & Guaranty Co.,1925, 238 Ill.App. 112 – Kindred v. Stitt 51 Ill. 401, 1869 WL 5352 (Ill.) – Enright v. Gibson 219 Ill. 550, 76 N.E. 689 – People v. Parker, 374 Ill. 524, N.E.2d 11 – People v. Hooper, 1989, 142 Ill.Dec. 93, 133 Ill.2d 469, 552 N.E.2d 684, certiorari denied 111 S.Ct. 284, 498 U.S. 911, 112 L.Ed.2d 239 – People v. Krumery, App.1966, 74 Ill.App.2d 298, 220 N.E.2d 241 – 280 Ill. at 166, 117 N.E. at 434 – People ex rel. v. Leinecke, 290 Ill. 560, 125 N.E. 513; People v. Clark, 280 Ill. 160, 117 N.E. 432; Housh v. People, 75 Ill. 487  Secondary Authority: “Record of Proceedings, Sixth Illinois Constitutional Convention, Daily Journals – December 8, 1969 – September 3, 1970.”


Footnote 7. Case 10-MR-75 case dismissal by Babka

 

Footnote 8. People Ex Rel. Daley v. Moran, 94Ill. 2d 41, 445N.E. 2d, 67, Ill. Dec 790

http://www.leagle.com/xmlResult.aspx?xmldoc=198313594Ill2d41_1132.xml&docbase=CSLWAR1-1950-1985

http://il.findacase.com/research/wfrmDocViewer.aspx/xq/fac.%5CSAC%5CIL%5C1983%5C19830104_0000003.IL.htm/qx

 

Footnote 9. http://markmccoy.com/wp/2011/06/06/memorandum-of-law-regarding-private-individual-making-criminal-complaint-and-the-former-office-of-magistrate-in-illinois/

Judge Babka did make clear that the State’s Attorney has ultimate discretion to proceed with the prosecution of criminal offenses, yet the Petitioner maintained that before that discretion may be exercised he still has a right to have charges presented before the State’s Attorney can decline any prosecution. The Petitioner merely wishes to present his complaints before a person authorized by law to hear said complaints and act upon such information, upon a finding of probable cause, and issue warrants for the arrest of said persons so accused. At that point, the ministerial duty of the judicial official is satisfied and the procedural duties thereby shift to the State’s Attorney.

 

Footnote 10. http://www.leagle.com/xmlResult.aspx?xmldoc=198313594Ill2d41_1132.xml&docbase=CSLWAR1-1950-1985

people-ex-rel-daley-v-moran2372

It is a familiar and firmly established principle that the State’s Attorney, as a member of the executive branch of government, is vested with exclusive discretion in the initiation and management of a criminal prosecution. (People ex rel. Davis v. Vazquez (1982), 92 Ill.2d 132, 150; People ex rel. Carey v. Cousins (1979), 77 Ill.2d 531, 539; Ill. Rev. Stat. 1981, ch. 14, par. 5.) That discretion includes the decision whether to prosecute at all, as well as to choose which of several charges shall be brought. (People v. Pankey (1983), 94 Ill.2d 12, 16; People ex rel. Carey v. Cousins (1979), 77 Ill.2d 531, 539.) The Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 111-2(a)) provides that “[a]ll prosecutions of felonies shall be by information or by indictment,” and that “[n]o prosecution may be pursued by information unless a preliminary hearing has been held or waived in accordance with Section 109-3 and at that hearing probable cause to believe the defendant committed an offense was found.” An information, of course, is a formal presentation of a criminal charge against a defendant by the People’s representative: the State’s Attorney. (People v. Gahagan (1938), 368 Ill. 475, 478; Ill. Ann. Stat., ch. 38, par. 111-1, Committee Comments, at 321 (Smith-Hurd 1980).) It “shall be signed by the State’s Attorney and sworn to by him or another.” (Ill. Rev. Stat. 1981, ch. 38, par. 111-3(b).) No authority is cited and we have found none authorizing a trial judge to order the State to file an information, or to file that charge on the court’s own motion upon the State’s Attorney’s refusal to do so.We consider such action by a trial judge to be an impermissible exercise by the judicial branch of powers belonging exclusively to the executive and in direct contravention of the applicable statutory mandates. (Ill. Const. 1970, art. II, sec. 1; Ill. Rev. Stat. 1981, ch. 14, par. 5; Ill. Rev. Stat. 1981, ch. 38, par. 111.) A trial judge cannot, consistent with the constitutional principle of separation of powers, assume the role of prosecutor and determine which criminal offense shall be charged and thereafter proceed with disposition of that offense over the State’s objection, and the court had no authority to direct that the information be filed and then accept the guilty pleas thereto. (People ex rel. Elliott v. Covelli)

 

Footnote 11. THE PEOPLE EX REL. RICHARD M. DALEY 94 Ill.2d 41, 445 N.E.2d 270, 1983.IL.

On June 27, 1982, Johnnie and Charles Wilson were charged in a complaint for preliminary examination with aggravated battery. They allegedly struck a police officer in the head and upper body with a car jack. On July 9, the Wilsons appeared before respondent with their attorney. The complaining witness, Officer Willie Cochran, and an assistant State’s Attorney were also present.

 

Footnote 12. 725 ILCS 5/109‑3Sec. 109‑3.  http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=072500050HArt%2E+109&ActID=1966&ChapterID=54&SeqStart=15000000&SeqEnd=15600000

Preliminary examination.) (a) The judge shall hold the defendant to answer to the court having jurisdiction of the offense if from the evidence it appears there is probable cause to believe an offense has been committed by the defendant, as provided in Section 109‑3.1 of this Code, if the offense is a felony.

 

Footnote 13. http://markmccoy.com/wp/2011/04/30/how-the-state-of-illinois-commits-fraud-when-charging-an-offense/

This section of the Constitution has been many times construed by this court, and it has been uniformly held that no person may be arrested and held to answer a charge of crime other than on asworn complaint before a judge or justice of the peace, or an indictment returned by a grand jury duly sworn and impaneled, or by presentment of not less than two members of such grand jury, or by verified information of the state’s attorney or Attorney General in certain cases.People ex rel. v. Leinecke, 290 Ill. 560, 125 N.E. 513;People v. Clark, 280 Ill. 160, 117 N.E. 432;Housh v. People, 75 Ill. 487; also, Smith-Hurd Rev.St.1931, c. 38, ss 662, 664, 711, 721. The only exceptions to these requirements arise in cases where the arrest or seizure is made by an officer in whose presence the crime is committed or who has reasonable ground for believing that the person arrested was implicated in the commission of a crime.People v. Caruso, 339 Ill. 258, 171 N.E. 128;People v. Swift, 319 Ill. 359, 150 N.E. 263;Lynn v. People, 170 Ill. 527, 48 N.E. 964;North v. People, 139 Ill. 81, 28 N.E. 966),

The only other instance where an arrest or seizure is at all justifiable is where an offense is committed in the presence of the officer or person making the arrest, And in such case there must be a sworn complaint or indictment before trial to set the machinery of the law in motion.’ (Emphasis supplied.) 280 Ill. at 166, 117 N.E. at 434.

The only exceptions to these requirements arise in cases where the arrest or seizure is made by an officer in whose presence the crime is committed or who has reasonable ground for believing that the person arrested was implicated in the commission of a crime. ( People v. Caruso, 339 Ill. 258, 171 N.E. 128;People v. Swift, 319 Ill. 359, 150 N.E. 263;Lynn v. People, 170 Ill. 527, 48 N.E. 964;North v. People, 139 Ill. 81, 28 N.E. 966), And even then a sworn complaint or indictment must follow before the court can take jurisdiction.’

Arrest by warrant is unlawful until complaint charging crime has been filedHoush v. People, 1874, 75 Ill. 487.

 

Other Articles germane to this article:

http://markmccoy.com/wp/2011/01/07/in-the-beginning-a-preface-to-this-subject/
http://markmccoy.com/wp/2010/08/20/corruption-in-st-clair-county-illinois-officials-refuse-to-prosecute-police-for-misconduct/
http://markmccoy.com/wp/2011/03/28/my-pursuit-of-criminal-charges-against-fairview-heights-police-for-beating-me/
http://markmccoy.com/wp/2010/09/20/email-tete-a-tete-between-myself-and-brendan-kelly-circuit-clerk-of-st-clair-county/
http://markmccoy.com/wp/2011/04/13/an-open-letter-to-brendan-kelly-state%E2%80%99s-attorney/
http://markmccoy.com/wp/2011/06/06/memorandum-of-law-regarding-private-individual-making-criminal-complaint-and-the-former-office-of-magistrate-in-illinois/

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Police Have the Right to Invade the Homes of Judges in Indiana.

I find this case to be a warning shot across the bow of those hold-outs who believe this is a government of, by, and for the People, and that political action will remedy the no-longer stealthy encroachment upon natural, unalienable rights. No longer does the State veil its threats in craftily worded court opinions, but rather proudly raise the flag of totalitarianism in laying claim to one of the most fundamental of rights, that of self-defense. I expound upon the application of this right and previous courts recognizing such in this article.  The Indiana Supreme Court also references one seminal case, Bad Elk v. United States.

In that case, the court said,

“Citizens may resist unlawful arrest to the point of taking an arresting officer’s life if necessary.” Plummer v. State, 136 Ind. 306. This premise was upheld by the Supreme Court of the United States in the case: John Bad Elk v. U.S., 177 U.S. 529. The Court stated: “Where the officer is killed in the course of the disorder which naturally accompanies an attempted arrest that is resisted, the law looks with very different eyes upon the transaction, when the officer had the right to make the arrest, from what it does if the officer had no right. What may be murder in the first case might be nothing more than manslaughter in the other, or the facts might show that no offense had been committed.”

However, the Indiana Supreme Court goes on to overturn this antiquated, common law right in referring to the Model Penal Code, The Uniform Arrest Act, 28 Va. L. Rev. 315, 330 (1942). What people fail to realize is, that under the Common Law, it was recognized that the individual was in full possession of his liberties by way of natural, unalienable rights and the protections guaranteed by the Constitution. Nowadays, courts circumvent long-held beliefs in the supremacy of individual liberty in favor of public policy. Everyone is essentially considered to be suspected of something, and when felonies were the crime of concern, the bar has been lowered to accommodate misdemeanors as well. Everyone is considered to be potentially violent and in violation of some law. Police are afforded carte blanche when it comes to inspecting, questioning, detaining, arresting, and even killing people.  The Indiana Supreme Court said,

“The Model Penal Code eliminated the right on two grounds: ―(1) the development of alternate remedies for an aggrieved arrestee, and (2) the use of force by the arrestee was likely to result in greater injury to the person without preventing the arrest.‖  Hemmens & Levin, supra, at 23.  In response to this criticism, a majority of states have abolishedthe right via statutes in the 1940s and judicial opinions in the 1960s.

What are the “alternate remedies for aggrieved arrestees” the court favors in opposition to the common law right to resist arrest? Under the common law right, the court supports its previous recognition of the right based on the then-perils facing the arrestee such as indefinite detention, lack of bail, disease-infested prisons, and physical torture. This is to say that when faced with such possibilities, an individual had the right to resist unlawful arrest because the outcome from such resistance was less and considered more reasonable than the perils awaiting him if he should submit. Reading this another way, the courts were saying that law enforcement was known to, at times, treat arrested persons in ways inconsistent with natural, unalienable rights and Constitutional protections. The “alternate remedies” to which the court now speaks, referring to them as “modern developments’, include, “(1) bail, (2) prompt arraignment and determination of probable cause, (3)the exclusionary rule, (4) police department internal review and disciplinary procedure, and (5) civil remedies).” This is to say that, presuming you survive the arrest, you have more civil and peaceable remedies at your disposal which will still subject you to the arbitrary, corrupt, and protracted administration of so-called “justice”. If you are the victim of an unlawful arrest you can post bail, challenge the probable cause for the intrusion, which has essentially been negated by this ruling because probable cause exists only in justifying the grounds for an arrest, exclude any illegally obtained evidence and petition the gangsters who violated your rights for redress and pursue civil remedies of which the legislatures have extended limited immunity. Sounds like a fair trade-off to me.

There are two Justices who voiced their dissent with the majority ruling, and you can read the entire court opinion here. They likewise mention the overbreadth of this ruling which essentially means the police need no reason at all for entering your home. One thing that distinguishes this case from others where the court affirmed the Common Law right to resist unlawful arrest is that this was a “domestic violence” case where a call to 911 was made. The Court did not mention this as a specific and limited application of their overbroad abrogation of the common law, but briefly mention it early in the ruling. Domestic violence, or not, the Court essentially buries centuries of jurisprudence which recognizes the right of an individual to defend themselves from unlawful State action, especially that which violates the sanctity of their home.

I wonder what Justice, Steven David, would do when faced with the specter of an unlawful arrest; especially on in which his very life is threatened by police. For example, let’s say that some private individuals purchase uniforms that resemble police uniforms. Let ‘s say these individuals just so happen to be particularly exasperated with the despotic ruling by Justice David and, as a result, exhibit aggressive, violent, and irrational behavior when acting out this scenario; much like a common police officer would exhibit. Let’s say these angry, violent, police-imposters barge into Justice David’s home with guns drawn and barking orders at the residents, maybe including David’s wife, children, and elderly parents. Let’s assume that Justice David is a gunowner and has within his reach access to a firearm. The imposters order everyone to the ground where they go on to verbally abuse and physically assault recalcitrant suspects. Justice David tries to verbally engage the imposters to determine the reason for the intrusion. Some of David’s family appear to resist out of fear for their lives. The imposters kick and pistol whip them for their insolence. They shout to the suspects, “Shut up! Justice David has affirmed our right to violate your right to be secure in your own home! We are blameless!” During the confrontation, one of the imposters shoots and kills David’s children and wife as well as seriously wounding David himself. They then apologize for the intrusion, citing a mistaken address provided to them by a drug snitch before leaving the premises.

Would David gather his fallen family members and tsk-tsk-tsk their demise as a justifiable exercise of State action? He would be none the wiser that the perpetrators were not police, as they were disguised as police. Yet, in David’s twisted mind he would believe their actions to be in conformance with his psychotic ruling. Would David lick his wounds and then march down to the county courthouse to file a civil suit to recover monetary damages to replace the lost affection and companionship of his fallen family members? Would he look at the hole in his leg and reflect back on his ruling, thinking, ” ’tis just and right.”? One must wonder what such a man would do when faced with the real-world application of his holding. I guess David, being the good Statist that he is, would accept the death of his family as reasonable, since their recourse is to quietly compost into worm food and apply for bail.

Of course, God forbid any such thing would happen, but then again, God forbid the State would do the same to any other. Yet, that very thing happens all too frequently. In that case, I guess there is no reason to feel any differently towards Justice David’s loss than that of any other; and seeing David has no consideration for the possible horrors facing others who take exception with David’s opinion, I can only speculate that David would believe his family “deserved it”. Maybe Justice David has something to think about, and maybe something to fear, as well. What follows is the text of the opinion. This message brought to you by Bob’s Costume Rental, 123 Main Street, Indianapolis, Indiana.

INDIANAPOLIS | Overturning a common law dating back to the English Magna Carta of 1215, the Indiana Supreme Court ruled Thursday that Hoosiers have no right to resist unlawful police entry into their homes.

In a 3-2 decision, Justice Steven David writing for the court said if a police officer wants to enter a home for any reason or no reason at all, a homeowner cannot do anything to block the officer’s entry.

“We believe … a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence,” David said. “We also find that allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest.”

David said a person arrested following an unlawful entry by police still can be released on bail and has plenty of opportunities to protest the illegal entry through the court system.

The court’s decision stems from a Vanderburgh County case in which police were called to investigate a husband and wife arguing outside their apartment.

When the couple went back inside their apartment, the husband told police they were not needed and blocked the doorway so they could not enter. When an officer entered anyway, the husband shoved the officer against a wall. A second officer then used a stun gun on the husband and arrested him.

Professor Ivan Bodensteiner, of Valparaiso University School of Law, said the court’s decision is consistent with the idea of preventing violence.

“It’s not surprising that they would say there’s no right to beat the hell out of the officer,” Bodensteiner said. “(The court is saying) we would rather opt on the side of saying if the police act wrongfully in entering your house your remedy is under law, to bring a civil action against the officer.”

Justice Robert Rucker, a Gary native, and Justice Brent Dickson, a Hobart native, dissented from the ruling, saying the court’s decision runs afoul of the Fourth Amendment of the U.S. Constitution.

“In my view the majority sweeps with far too broad a brush by essentially telling Indiana citizens that government agents may now enter their homes illegally — that is, without the necessity of a warrant, consent or exigent circumstances,” Rucker said. “I disagree.”

Rucker and Dickson suggested if the court had limited its permission for police entry to domestic violence situations they would have supported the ruling.

But Dickson said, “The wholesale abrogation of the historic right of a person to reasonably resist unlawful police entry into his dwelling is unwarranted and unnecessarily broad.”

This is the second major Indiana Supreme Court ruling this week involving police entry into a home.

On Tuesday, the court said police serving a warrant may enter a home without knocking if officers decide circumstances justify it. Prior to that ruling, police serving a warrant would have to obtain a judge’s permission to enter without knocking.

 

How the State of Illinois commits fraud when charging an offense.

If you have been issued a traffic ticket or charged with a misdemeanor in Illinois and appeared in court or failed to appear and had a bench warrant issued, chances are you have not been charged with an offense and have no duty to appear in court to answer the charges. If you have pleaded or were found guilty for a traffic infraction or misdemeanor then you probably pleaded to a nonexistent charge. If either is the case, I recommend you contact me. There may be a way to get your judgment voided since the court did not have jurisdiction in the first place. I have seen hundreds of traffic tickets, as well as a fair share of complaints and informations. I have yet to see a warrant issued by a judge and supported by affidavit, or an information signed and swore to by the State’s Attorney. Traffic tickets are not complaints and you have no obligation to appear in court for a traffic ticket.

I have written numerous times on the issue of defective charges issued by police and prosecutors in Illinois, particularly St. Clair County. I will walk through the lawful requirements for charging an offense and how the State either willfully or ignorantly files insufficient and unlawful charges against individuals. For there to be a lawful charge, there must first be jurisdiction. This article will deal with Constitutional issues as well as statutory requirements and appellate court opinions on the subject. I think you will find that if you have been charged with a traffic or misdemeanor offense, maybe even a felony, you have not been lawfully charged with an offense and have voluntarily appeared to answer for non-existent charges.

Before we even get to what the “law” says, we must understand the basic protections afforded by the Constitutions. Let’s begin with the Fourth Amendment to the US Constitution:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause,supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (This means NO warrants, including bench warrants, traffic warrants, etc.)

Now we move on to Article I, Section 6 of the Illinois Constitution (Bill of Rights):

SECTION 6. SEARCHES, SEIZURES, PRIVACY AND INTERCEPTIONS

The people shall have the right to be secure in their persons, houses, papers and other possessions against unreasonable searches, seizures, invasions of privacy or interceptions of communications by eavesdropping devices or other means. No warrant shall issue without probable cause, supported by affidavit particularly describing the place to be searched and the persons or things to be seized. (This is substantially a recitation of the Fourth Amendment, except it specifies an affidavit as opposed to an oath. This may be a fine distinction, but an oath is given orally and affidavit is in writing. The Fourth Amendment provides for both whereas Illinois limits warrants to being supported by a written affidavit.

There are generally 3 ways to charge an offense; by complaint, information, and indictment. This is not to say that you cannot be arrested without them. It has been held that if a criminal offense is committed in the presence of a police officer or a private citizen they may make an arrest. Either a police officer or private citizen may make an arrest with a warrant. Only a police officer can make an arrest based on probable cause. Here is what the courts have said regarding these options in relation to the protections of the Constitutions:

This section of the Constitution has been many times construed by this court, and it has been uniformly held that no person may be arrested and held to answer a charge of crime other than on a sworn complaint before a judge or justice of the peace, or an indictment returned by a grand jury duly sworn and impaneled, or by presentment of not less than two members of such grand jury, or by verified information of the state’s attorney or Attorney General in certain cases.People ex rel. v. Leinecke, 290 Ill. 560, 125 N.E. 513;People v. Clark, 280 Ill. 160, 117 N.E. 432;Housh v. People, 75 Ill. 487; also, Smith-Hurd Rev.St.1931, c. 38, ss 662, 664, 711, 721. The only exceptions to these requirements arise in cases where the arrest or seizure is made by an officer in whose presence the crime is committed or who has reasonable ground for believing that the person arrested was implicated in the commission of a crime.People v. Caruso, 339 Ill. 258, 171 N.E. 128;People v. Swift, 319 Ill. 359, 150 N.E. 263;Lynn v. People, 170 Ill. 527, 48 N.E. 964;North v. People, 139 Ill. 81, 28 N.E. 966),

A Citizen has the power of arrest reflected in the Illinois Compiled Statutes:

(725 ILCS 5/107‑3) (from Ch. 38, par. 107‑3) Sec. 107‑3. Arrest by private person.  Any person may arrest another when he has reasonable grounds to believe that an offense other than an ordinance violation is being committed. (Source: Laws 1963, p. 2836.)

(725 ILCS 5/107‑9) (from Ch. 38, par. 107‑9)  Sec. 107‑9. Issuance of arrest warrant upon complaint. (e) The warrant shall be directed to all peace officers in the State. It shall be executed by the peace officer, or by a private person specially named therein, at any location within the geographic limitation for execution placed on the warrant. If no geographic limitation is placed on the warrant, then it may be executed anywhere in the State.

To this point, it is clear that both the US Constitution and Illinois Constitution state, as supported by the courts, that no arrest can be made without a warrant, and for there to be a warrant there must be a sworn complaint; except in cases where a police officer personally witnesses the crime or has probable cause, or when a private person reasonably believes an offense other than an ordinance violation is being committed. Pay attention to “is being committed”. This means the offense must be in progress and not a thing of the past or future. A private person cannot arrest someone because of what they did or are about to do. That is the extent of the power of arrest possessed by the State. Illinois takes this one step further, which is where I believe arrests by so-called “bench warrants” come into play. The statutes say:

(725 ILCS 5/107‑2) (from Ch. 38, par. 107‑2) Sec. 107‑2. (1) Arrest by Peace Officer. A peace officer may arrest a person when:  (a) He has a warrant commanding that such person be arrested; or (b) He has reasonable grounds to believe that a warrant for the person’s arrest has been issued in this State or in another jurisdiction;

Police do not know the law. They only do what they are told. If a police officer is handed a bench warrant he does not question whether the warrant has been lawfully issued pursuant to the Constitution. If he checks his computer and sees a notice about a bench warrant he does not review the warrant for conformity with the law. He does not review the warrant for the judge’s signature or whether there is a corresponding affidavit. He is operating on “reasonable grounds” that a warrant has been issued because of the bench warrant. This can be dangerous, because without a warrant there is no arrest, regardless of the police officer’s belief. People have a right to be secure in their persons, papers, and possessions and if unlawfully assaulted in this respect have a natural right to defend themselves and their property, even from police. I expound on this premise in this article and will not revisit the specifics here.

Before going further, we must ask this question. If the law provides for arrests, are there any who are exempt from arrests? I know many believe police are exempt from arrests when in the performance of their duties, but are they? Let’s visit the statutes again where we find some guidance.

(725 ILCS 5/107‑7) (from Ch. 38, par. 107‑7) Sec. 107‑7. Persons exempt from arrest. (a) Electors shall, in all cases except treason, felony or breach of the peace, be privileged from arrest during their attendance at election, and in going to and returning from the same. (b) Senators and representatives shall, in all cases, except treason, felony or breach of the peace, be privileged from arrest during the session of the General Assembly, and in going to and returning from the same. (c) The militia shall in all cases, except treason, felony, or breach of the peace, be privileged from arrest during their attendance at musters and elections, and in going to and returning from the same. (d) Judges, attorneys, clerks, sheriffs, and other court officers shall be privileged from arrest while attending court and while going to and returning from court. (Source: Laws 1963, p. 2836.)

I fail to find anywhere in that section an exemption for police officers. It does specifically mention sheriffs, but police officers are municipal or state  employees and not officers of the court. The statute even alludes to sheriffs being not exempt if they are not attending court or going to and from court. This means that if a police officer commits a crime in the presence of a private individual they may make an arrest of that police officer. This would include the police officer using excessive force or other crime committed under the pretense of effecting an arrest.

So now we know there can be no arrest without a warrant or unless a crime is committed in the presence of a police officer or other individual, or in cases where police have reasonable suspicion that a crime has been, is being, or will be committed. If there is a warrant, it must be sworn to and in writing.

The only other instance where an arrest or seizure is at all justifiable is where an offense is committed in the presence of the officer or person making the arrest, And in such case there must be a sworn complaint or indictment before trial to set the machinery of the law in motion.’ (Emphasis supplied.) 280 Ill. at 166, 117 N.E. at 434.

The only exceptions to these requirements arise in cases where the arrest or seizure is made by an officer in whose presence the crime is committed or who has reasonable ground for believing that the person arrested was implicated in the commission of a crime. ( People v. Caruso, 339 Ill. 258, 171 N.E. 128;People v. Swift, 319 Ill. 359, 150 N.E. 263;Lynn v. People, 170 Ill. 527, 48 N.E. 964;North v. People, 139 Ill. 81, 28 N.E. 966), And even then a sworn complaint or indictment must follow before the court can take jurisdiction.’

Arrest by warrant is unlawful until complaint charging crime has been filedHoush v. People, 1874, 75 Ill. 487.

By the common law, and according to the holdings in many of the states, a private person may justify an arrest by showing that a felony had been actually committed and that he had reasonable grounds to suspect that the person arrested committed the felony. 2 Am. & Eng. Ency. of Law (2d Ed.) 885; 3 Cyc. 885, and authorities therein cited. By section 4 of division 6 of our Criminal Code (Hurd’s Rev. St. 1903, c. 38, § 342, p. 677), it is provided: ‘An arrest may be made by an officer or by a private person without warrant, for a criminal offense committed or attempted in his presence, and by an officer, when a criminal offense has in fact been committed and he has reasonable ground for believing that the person to be arrested has committed it.’ From the reading of this statute it would seem that there is pointed out a distinction between the power of a citizen to make an arrest and that of an officer. A citizen may arrest when an offense is committed or attempted to be committed in his presence. So, too, may an officer under the same circumstances. But an officer may also arrest where the criminal offense has in fact been committed and he has reasonable grounds for believing the person arrested has committed it. But this latter power is not extended to a citizen by the statute. Enright v. Gibson, 219 Ill. 550, 76 N.E.689

There are, no doubt, cases which hold that private individuals may arrest on probable cause; but there are authorities which hold the contrary rule, and in the conflict of authority we are left free to adopt the rule which seems to be most consonant with reason and the public interest; and to prevent breaches of the peace, and even bloodshed, we think that a private individual should not be justified unless a crime had been committed and the person arrested shall be shown to be the guilty party.’ We think this case a clear announcement of the rule in this state that, before a private citizen can justify an arrest made by him, he must show not only that a crime has in fact been committed, but that the person arrested is guilty of the crimeEnright v. Gibson, 219 Ill. 550, 76 N.E.689

Fact that complaint itself may not have stated facts supporting probable cause did not make arrest warrant invalid, where trial court examined complainant under oath and determined that probable cause existed. People v. Hayes, 1990, 151 Ill.Dec.348, 139 Ill.2d 89, 564 N.E.2d 803, certiorari denied 111 S.Ct. 1601, 449 U.S. 967, 113 L.Ed.2d 664. Criminal Law211(1); Criminal Law212

The court is saying that even if the complaint itself does not contain information to support probable cause, by the court examining the complainant under oath, it determined that probable cause was sufficient for the issuance of an arrest warrant. This illustrates the importance of the court examining the complainant or witness. It is not the written complaint which is  important, but that there is a flesh-and-blood individual before the court swearing under oath and penalty of perjury that there has been a crime committed, and the complaint serves as the written instrument for the record which the court will refer to in prosecuting the crime.

Officer seeking arrest warrant is not required to present issuing judge any and all circumstances which may affect finding of probable cause. People v. Hothersall, App. 2 Dist.1981, 58 Ill.Dec. 891, 103 Ill.App.3d 183, 430 N.E.2d 1142. Criminal Law 211(3)

Complaints for arrest warrants, which complaints contained names of accused, offense charged, time and place of offense, and signature and oath of complainant, were sufficient under this paragraph. People v. Collins, App. 1 Dist.1979, 26 Ill.Dec.165, 70 Ill.App.3d 413, 387 N.E.2d 995. Criminal Law211(1)

Probable cause necessary for issuance of arrest warrant cannot be made out by mere conclusory statements in affidavit in support of warrant that probable cause exists. People v. Davis, App. 1 Dist.1974, 20 Ill.App.3d 948, 314 N.E.2d 723.Criminal Law 211(1)

Where arrest warrant was issued on basis of a complaint which merely stated that police officer had just and reasonable grounds to believe that defendant had sold a narcotic drug, warrant was defective under Const. 1870, Art. 2, § 6 (see, now, Const. Art. 1, § 6), and evidence obtained as a result of defendant’s arrest was inadmissible. People v. Waitts, 1967, 36 Ill.2d 467, 224 N.E.2d 257. Criminal Law 211(3); Criminal Law394.4(9)

Complaint which charged offense of disorderly conduct and which was verified before notary public and presented to court by complainant, who was thereupon examined under oath by court, was sufficient as basis for issuance of warrant of arrest. Village of Willowbrook v. Miller,  App.1966, 72 Ill.App.2d 30, 217 N.E.2d 809. Criminal Law 211(1)

complaint in writing subscribed and sworn to, containing a concise statement of the offense charged, the name of the person accused, and averring that the complainant has just and reasonable grounds to believe that the accused committed the offense, is sufficient. People v. United States Fidelity & Guaranty Co.,1925, 238 Ill.App. 112.

Illinois courts may issue an arrest warrant only if complaint shows that probable cause exists to believe proposed arrestee has committed crime in question. Keefer v. Leach, 1979, 597 P.2d 203, 198 Colo. 101. Criminal Law 217

This paragraph did not require that complaint or warrant articulate probable cause for arrest but rather that court, in making determination of probable cause for issuance of arrest warrant, examine complainant or any witness under oath. People v. Hooper, 1989, 142 Ill.Dec. 93, 133 Ill.2d 469, 552 N.E.2d 684, certiorari denied 111 S.Ct. 284, 498 U.S. 911, 112 L.Ed.2d 239. Criminal Law211(1); Criminal Law 212

For there to be a lawful arrest there must first be an arrest warrant supported by a sworn complaint, information, or indictment; or a police officer must have reasonable suspicion that a crime has been committed or he or a private individual must have witnessed the crime personally. For there to be a complaint or information, there must be a supporting affidavit or oath. Even if arrested by a police officer witnessing the offense there must be a sworn complaint or indictment supported by affidavit or oath. Regardless, in ALL CASES, there MUST BE A SWORN COMPLAINT SUPPORTED BY AFFIDAVIT OR OATH. If either of these is missing from a charge the court has NO jurisdiction and the charge cannot stand.

CHARGING AN OFFENSE

We also need to examine the ways an offense can be charged. These are complaint, information, and indictment. Let’s examine the requirements for each.

(725 ILCS 5/Art. 111 heading)

ARTICLE 111. CHARGING AN OFFENSE

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=072500050HTit%2E+IV&ActID=1966&ChapterID=54&SeqStart=19700000&SeqEnd=25100000

(725 ILCS 5/111‑1) (from Ch. 38, par. 111‑1)

Sec. 111‑1. Methods of prosecution.

When authorized by law a prosecution may be commenced by:

(a) A complaint; [1]

(b) An information; [2]

(c) An indictment. [3]

(725 ILCS 5/111‑2) (from Ch. 38, par. 111‑2)

Sec. 111‑2. Commencement of prosecutions.

(a) All prosecutions of felonies shall be by information or by indictment. No prosecution may be pursued by information unless a preliminary hearing has been held or waived in accordance with Section 109‑3 and at that hearing probable cause to believe the defendant committed an offense was found, and the provisions of Section 109‑3.1 of this Code have been complied with.

(b) All other prosecutions may be by indictment, information or complaint.

(d) Upon the filing of an information or indictment in open court, the court shall immediately issue a warrant for the arrest of each person charged with an offense directed to a peace officer or some other person specifically named commanding him to arrest such person.

(f) Where the prosecution of a felony is by information or complaint after preliminary hearing, or after a waiver of preliminary hearing in accordance with paragraph (a) of this Section, such prosecution may be for all offenses, arising from the same transaction or conduct of a defendant even though the complaint or complaints filed at the preliminary hearing charged only one or some of the offenses arising from that transaction or conduct.

(Source: P.A. 90‑590, eff. 1‑1‑99.)

(725 ILCS 5/111‑3) (from Ch. 38, par. 111‑3)

Sec. 111‑3. Form of charge.

(b) An indictment shall be signed by the foreman of the Grand Jury and an information shall be signed by the State’s Attorney and sworn to by him or another [4].

A complaint shall be sworn to and signed by the complainant [5];

provided, that when a peace officer observes the commission of a misdemeanor and is the complaining witness, the signing of the complaint by the peace officer is sufficient to charge the defendant with the commission of the offense [6],

and the complaint need not be sworn to if the officer signing the complaint certifies[7]

that the statements set forth in the complaint are true and correct and are subject to the penalties provided by law for false certification [8]

under Section 1‑109 of the Code of Civil Procedure and perjury under Section 32‑2 of the Criminal Code of 1961[9]

and further provided , however, that when a citation is issued on a Uniform Traffic Ticket or Uniform Conservation Ticket (in a form prescribed by the Conference of Chief Circuit Judges and filed with the Supreme Court), the copy of such Uniform Ticket which is filed with the circuit court constitutes a complaint to which the defendant may plead [10],

unless he specifically requests that a verified complaint be filed [11].

[1]Complaint – 725 ILCS 5/102 9 “Complaint” means a verified written statement other than an information or an indictment, presented to a court, which charges the commission of an offense.

[2]Information – 725 ILCS 5/102 12 “Information” means a verified written statement signed by a State’s Attorney, and presented to a court, which charges the commission of an offense.

[3]Indictment – 725 ILCS 5/102 11 “Indictment” means a written statement, presented by the Grand Jury to a court, which charges the commission of an offense.”

[4]There is a little confusion on this as to whether anyone can swear to an information signed by the State’s Attorney. I have seen informations sworn to by the police officer, but does “another” mean “anyone else”? In this sense, “another” means someone else in the State’s Attorney’s office, such as an Assistant State’s Attorney. Looking at footnote [5] you will see that for a complaint, the lowest form of charge there is, it must be signed and sworn to by the complainant. Why would a complaint not be signed by the complainant and sworn to by “another”? Because the person making the charge is the one subject to the penalties of perjury so they must sign and swear. With the State’s Attorney’s office, they are working under the same oath of office and extensions of the State’s Attorney. Therefore, duly appointed deputies of the State’s Attorney, Assistant State’s Attorneys, can swear as though it were the State’s Attorney himself. For other guidance on this, we look at another State, Florida, and its requirements. http://www.joffelaw.com/state-rules/3-140.html

(g) Signature, Oath, and Certification; Information. An information charging the commission of a felony shall be signed by the state attorney, or a designated assistant state attorney, under oath stating his or her good faith in instituting the prosecution and certifying that he or she has received testimony under oath from the material witness or witnesses for the offense. An information charging the commission of a misdemeanor shall be signed by the state attorney, or a designated assistant state attorney, under oath stating his or her good faith in instituting the prosecution. No objection to an information on the ground that it was not signed or verified, as herein provided, shall be entertained after the defendant pleads to the merits.

[5]As distinguished from an information, the complaint must be signed and sworn to by the complainant. There is no provision for a complaint being signed by the complainant and sworn to by another individual.

[6]Notice that it specifies the “commission of a misdemeanor” and not a felony. It is saying that if the police officer is the complaining witness and directly observes the commission of a misdemeanor, his signature on the complaint is sufficient to charge the defendant with the commission of the offense. However, remember that a complaint must be sworn to. This statement is misleading, as it is referring to misdemeanors which are civil in nature, and not criminal. Read on.

[7]It goes on to say the complaint need not be sworn to if the officer certifies, which is not the same as verification. Certification is a method used in civil proceedings to show notice was served to parties. It is different from verification. “Although statute provided that, whenever the Code of Civil Procedure requires a document to be sworn to or verified under oath, then verification under penalty of perjury is an acceptable substitute, the verification provided by statute was not a substitute for the affidavit required by “date of mailing” rule, providing that service is proved, in case of service by mail, by certificate of the attorney, or affidavit of a person other than the attorney, who deposited the paper in the mail; statute allowed for verification by certification unless otherwise expressly provided by rule of the Supreme Court. People v. Tlatenchi, App. 1 Dist.2009, 330 Ill.Dec. 485, 391 Ill.App.3d 705, 909 N.E.2d 198, rehearing denied , appeal denied 336 Ill.Dec. 489, 234 Ill.2d 547, 920 N.E.2d 1079.”

“By its express terms, statute governing verification by certification provides that, whenever the Code of Civil Procedure requires a document to be sworn to or verified under oath, then verification under penalty of perjury is an acceptable substitute, but statute does not indicate that such verification is an acceptable substitute when a statute, other than the Code of Civil Procedure, requires a document to be sworn to or verified under oath. People v. Tlatenchi, App. 1 Dist.2009, 330 Ill.Dec. 485, 391 Ill.App.3d 705, 909 N.E.2d 198, rehearing denied , appeal denied 336 Ill.Dec. 489, 234 Ill.2d 547, 920 N.E.2d 1079.”

Notice how it refers to the Code of Civil Procedure. In the case cited last, it says that certification is not acceptable when a document is required to sworn to or verified under oath, as with a criminal complaint. Certification and verification are two different things, certification belonging to civil proceedings and verification being a requisite for criminal charges.

[8]Again, it is talking a false certification, which applies to civil matters.

[9]Section 1-109 of the Code of Civil Procedure found here http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=073500050HArt%2E+I&ActID=2017&ChapterID=56&SeqStart=100000&SeqEnd=1100000

states “(735 ILCS 5/1‑109) (from Ch. 110, par. 1‑109)

Sec. 1‑109. Verification by certification. Unless otherwise expressly provided by rule of the Supreme Court, whenever in this Code any complaint, petition, answer, reply, bill of particulars, answer to interrogatories, affidavit, return or proof of service, or other document or pleading filed in any court of this State is required or permitted to be verified, or made, sworn to or verified under oath, such requirement or permission is hereby defined to include a certification of such pleading, affidavit or other document under penalty of perjury as provided in this Section.

Whenever any such pleading, affidavit or other document is so certified, the several matters stated shall be stated positively or upon information and belief only, according to the fact. The person or persons having knowledge of the matters stated in a pleading, affidavit or other document certified in accordance with this Section shall subscribe to a certification in substantially the following form: Under penalties as provided by law pursuant to Section 1‑109 of the Code of Civil Procedure, the undersigned certifies that the statements set forth in this instrument are true and correct, except as to matters therein stated to be on information and belief and as to such matters the undersigned certifies as aforesaid that he verily believes the same to be true.

Any pleading, affidavit or other document certified in accordance with this Section may be used in the same manner and with the same force and effect as though subscribed and sworn to under oath.

Any person who makes a false statement, material to the issue or point in question, which he does not believe to be true, in any pleading, affidavit or other document certified by such person in accordance with this Section shall be guilty of a Class 3 felony.

(Source: P.A. 83‑916.)”

All that Section 1-109 does is lay down the use of certification in civil matters. It is the rule by which certification may be used, and only in accordance with Civil Procedure. Section 32-2 of the Criminal Code goes on to define what perjury is and the penalties for committing. It is found here http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=072000050HArt%2E+32&ActID=1876&ChapterID=53&SeqStart=74000000&SeqEnd=77100000

and states “(720 ILCS 5/32‑2) (from Ch. 38, par. 32‑2)

Sec. 32‑2. Perjury.

(a) A person commits perjury when, under oath or affirmation, in a proceeding or in any other matter where by law such oath or affirmation is required, he makes a false statement, material to the issue or point in question, which he does not believe to be true.

(b) Proof of Falsity.

An indictment or information for perjury alleging that the offender, under oath, has made contradictory statements, material to the issue or point in question, in the same or in different proceedings, where such oath or affirmation is required, need not specify which statement is false. At the trial, the prosecution need not establish which statement is false.

(c) Admission of Falsity.

Where the contradictory statements are made in the same continuous trial, an admission by the offender in that same continuous trial of the falsity of a contradictory statement shall bar prosecution therefor under any provisions of this Code.

(d) A person shall be exempt from prosecution under subsection (a) of this Section if he is a peace officer who uses a false or fictitious name in the enforcement of the criminal laws, and such use is approved in writing as provided in Section 10‑1 of “The Liquor Control Act of 1934”, as amended, Section 5 of “An Act in relation to the use of an assumed name in the conduct or transaction of business in this State”, approved July 17, 1941, as amended, or Section 2605‑200 of the Department of State Police Law (20 ILCS 2605/2605‑200). However, this exemption shall not apply to testimony in judicial proceedings where the identity of the peace officer is material to the issue, and he is ordered by the court to disclose his identity.

(e) Sentence.

Perjury is a Class 3 felony.

(Source: P.A. 91‑239, eff. 1‑1‑00.)”

[10]This statement deals with traffic and conservation offenses, which are not crimes, but rather administrative or civil offenses. The form of the traffic or conservation offense is determined by the Illinois Supreme Court and the Conference of Chief Circuit Judges. For the purposes of this discussion, the applicability of this statement pertains to notice and charging of an offense. The Illinois Supreme Court website where this is discussed is here http://www.state.il.us/court/SupremeCourt/Rules/Art_V/ArtV.htm#Rule%20552

Under “Notice to Appear” it states “(e) Notice to Appear. In all cases in which a defendant is issued a Notice to Appear under section 107–12 of the Code of Criminal Procedure of 1963, as amended (725 ILCS 5/107–12), and fails to appear on the date set for appearance, or any date to which the case may be continued, the court may enter an ex parte judgment of conviction against an accused charged with an offense punishable by a fine only and in so doing shall assess fines, penalties and costs in an amount not to exceed equal to the cash bail required by this article. Payment received for fines, penalties, and costs assessed following the entry of an ex parte judgment shall be disbursed by the clerk pursuant to Rule 529. The clerk of the court shall notify the Secretary of State of the conviction pursuant to Rule 552 and of the unsatisfied judgment pursuant to section 6–306.6(a) of the Illinois Vehicle Code, as amended (625 ILCS 5/6–306.6(a)). In lieu of the foregoing procedure, a summons or warrant of arrest may be issued.

Committee Comments

(December 5, 2003)

Supreme Court Rule 556 (“Procedure if Defendant Fails to Appear”) delineates several procedures if the defendant fails to appear after depositing a driver’s license in lieu of bond, executes a written promise to comply, posts bond or issued a notice to appear.

The rule provided that the court may “enter an ex parte judgment of conviction against any accused charged with an offense punishable by a fine only and in so doing shall assess fines, penalties and costs in an amount not to exceed the cash bail required by this article.” Rule 556 does not detail the specific costs and penalties, or their amounts, in the entry of ex parte judgments. The clerk is then left with deciding which costs, fees and additional penalties (and their amounts) should be applied. This is currently being determined on a county by county basis.”

Notice how this rule, pertaining to traffic and conservation offenses, deal with Civil Procedure. Nothing in this rule addresses criminal matters, and deals with offenses punishable by “fine only”, which is considered a “petty offense”. Also, notice the last few words of this section state that such a complaint constitutes a complaint to which the defendant may plead. This means the defendant, if willing to voluntarily plead to this type of complaint, waives all his rights to having a sworn complaint filed. Read carefully the next excerpt from an Illinois Appellate case where this very issue is addressed by the court. I am quoting from People v. Brausam, 83 Ill.App.2d 354, 227 N.E.2d 533

“The charge against the defendant was initiated by an unverified ‘Illinois Uniform Traffic Ticket and Complaint.’ It was in the form prescribed by Supreme Court Rule, par. C, relating to ‘Procedures in Traffic Cases, Quasi-Criminal Cases and Certain Misdemeanors.’ (S.H.A. ch. 110, par. 102.1; also see: Ill.Rev.Stat.1965, ch. 16, pars. 81-85 incl.) The defendant contends that the judgment should be reversed in thathe had a right to be tried upon a verified complaint, and further, that the complaint was fatally defective since it did not adequately charge the offense of ‘drag racing.’

 

No pretrial motion was made by the defendant. He proceeded to trial without objection to the form of the complaint. After judgment, he filed a motion in arrest of judgment, asserting, among other things, that the complaint was not verified and that it failed to state a criminal or quasi-criminal offense within the statute under which he was charged.

 

It is readily apparent that the Supreme Court Rule governing procedures in traffic cases, quasi-criminal cases and certain misdemeanors, does not contemplate that the Illinois Uniform Traffic Ticket and Complaint be verified. The court, in People v. Harding, 34 Ill.2d 475, 216 N.E.2d 147 (1966), made an exhaustive analysis of its Rule and the statutes pertaining to the same subject matter. (Ill.Rev.Stat.1965, ch. 16, pars. 81-85 incl.; ch. 38, pars. 107-9, 107-11, 107-12 and par. 111-3(a)(b).) The court there pointed out that there is no constitutional provision requiring verification of the complaint which follows an arrest without a warrant. So far as the relevant constitutional provisions are concerned, they may require a sworn complaint as a prerequisite to the issuance of an arrest warrant, but they do not purport to lay down any jurisdictional prerequisites governing the institution of a criminal prosecution. The court stated at pages 482 and 483, 216 N.E.2d at pages 151 and 152

 

‘The Code of Criminal Procedure, enacted in 1963, retains the substance of the former statutory provisions with respect to the issuance of arrest warrants upon complaints and informations. (Ill.Rev.Stat.1965, chap. 38, par. 107-9.) But it also provides for the use of a summons, or a notice to appear, as ‘procedures for getting persons into court without the necessity and inconvenience of an immediate arrest.’ (S.H.A., chap. 38, pars. 107-11; 107-12, Committee Comments.) Although, as we have held, there is no constitutional requirement that a complaint must be verified in order to sustain a criminal prosecution, the Code continues the statutory requirement of a sworn complaint. Ill.Rev.Stat.1965, chap. 38, par. 111-3(b).

 

‘In many decisions it has been held that a complaint, defective because it was not verified, or verified upon information and belief, did not affect the jurisdiction of the court and that the right to be charged by a properly verified information can be waived. (Citations.) So far as the objection of want of verification is concerned, therefore, the unverified traffic ticket complaint used in this case would have sufficed to give the court jurisdiction if the defendant had waived the objection by going to trial without raising it, or by a plea of guilty.

 

‘The adoption by this court of the rule which authorized the use of the unverified form of Illinois Uniform Traffic Ticket and Complaint was not intended to dispense with the statutory requirement of a verified complaint, and we hold that a defendant who does not waive, by plea of guilty or by proceeding to trial without objection, the defective verification of a complaint, is entitled to be prosecuted upon a complaint which states upon the oath of the complainant the facts constituting the offense charged.’

 

The most that can be said for the requirement of verification of a traffic ticket and complaint, such as that before us, is that the Code of Criminal Procedure continues the requirement that a complaint be verified in order to sustain a criminal prosecution. (Ill.Rev.Stat.1965, ch. 38, par. 111-3(b).) The lack of verification, however, does not affect the jurisdiction of the court. The right to be charged by a properly verified complaint can be waived and, in fact, is waived unless the accused pleads guilty or proceeds to trial without an appropriate pretrial motion or objection.   People v. Harding, supra, 482, 483, 216 N.E.2d 147; Village of Willowbrook v. Miller, 72 Ill.App.2d 30, 34, 217 N.E.2d 809 (1966). The want of verification was not appropriately raised in the case at bar, and accordingly, we hold that the defendant has waived any right to object to the lack of verification.

People v. Brausam, 83 Ill.App.2d 354, 227 N.E.2d 533

That is pretty conclusive. There need not be a verified complaint for the court to have jurisdiction or to commence a prosecution because you may waive all your rights to a verified complaint and therefore submit to the jurisdiction. However, you have a right to demand a verified complaint, and if so, the court must have one before it can sustain a prosecution. Notice the statement in bold where the court says the traffic ticket is a procedure for getting persons into court without the necessity and inconvenience of an immediate arrest. They use the defective traffic ticket to get you into court and submit to jurisdiction without the necessity and inconvenience of there being a sworn criminal complaint.

[11]This statement summarized the discussion on complaints, particularly traffic and conservation offenses, where you may plead to the defective complaint unless you demand that a verified complaint be filed. This means that the court will have to require the complainant to swear to a complaint and have an arrest warrant issued, something they are not likely to do. This would require the police officer who issued the ticket to come before a judge with a written complaint that has been sworn to before someone authorized to administer oaths. This is what the court referred to as the “necessity and inconvenience”.

Notice how all but indictment requires a verified written statement. That is because the Grand Jury is sworn in when empaneled and all of their indictments derive from that oath, therefore, they do not need to issue a verified statement since they are already sworn in. However, both a complaint and an information must be supported by written sworn statements. Let’s look at what “verification” means.

“Verification”, has been held by Courts of this State to mean a written statement made under oath or affirmation before any officer empowered to administer oaths and which, for any willfully false or misleading statement made thereof, subjects the affiant to pains and penalty of perjury. Village of Willowbrook v. Miller, App.1966, 72 Ill.App.2d 30, 217 N.E.2d 809, People v. Siex, App.1942, 39 N.E.2d 84, 312 Ill.App. 657.

Now, what is this “officer empowered to administer oaths”? Fortunately, the answer is readily available for that as well.

The power to administer oaths derives from the Legislature and codified at 5 ILCS 5/255 et. seq. (Oaths and Affirmations Act)

While we’re digging, let’s look at who the Oaths and Affirmations Act embraces as an “officer empowered to administer oaths”.

(5 ILCS 255/2) (from Ch. 101, par. 2)     Sec. 2. Affidavits and depositions. All courts, and judges, and the clerks thereof, the county clerk, deputy county clerk, the Secretary of State, notaries public, and persons certified under the Illinois Certified Shorthand Reporters Act of 1984 may, in their respective districts, circuits, counties or jurisdictions, administer all oaths of office and all other oaths authorized or required of any officer or other person, and take affidavits and depositions concerning any matter or thing, process or proceeding commenced or to be commenced, or pending in any court or before them, or on any occasion wherein any affidavit or deposition is authorized or required by law to be taken.

Before we go on, the statute goes on to even define a judge:

(5 ILCS 255/7)     Sec. 7. Definition of judge. For the purposes of this Act, “judge” means (i) an incumbent judge of the Illinois Supreme, Appellate, or Circuit Court, whether elected or appointed, (ii) a retired judge of the Illinois Supreme, Appellate, or Circuit Court, and (iii) an incumbent or retired associate judge of the Illinois Circuit Court. The term “judge” does not include a judge who has been convicted of a felony or who has been removed from office by the Illinois Courts Commission. (Source: P.A. 95‑498, eff. 1‑1‑08.)

This does not include municipal judges, administrative law judges, or circuit court judges.

So, what is the significance of “verification”? Let’s look:

(5 ILCS 255/5) (from Ch. 101, par. 5)     Sec. 5. All oaths, affirmations, affidavits and depositions, administered or taken as provided in this act, shall subject any person who shall so swear or affirm willfully and falsely, in matter material to any issue or point in question, to the like pains and penalties as are inflicted by law on persons convicted of willful and corrupt perjury. (Source: R.S. 1874, p. 725.)

Verification is required because if the person so swearing does so falsely they will be held to answer for willful and corrupt perjury. I believe this is why State’s Attorneys do not issue proper informations in many cases because the charges are fraudulent to begin with. I believe most of them know the law either does not apply to most people in most cases, or they know they do not have knowledge of facts sufficient to charge an offense and therefore cannot swear to them. They rely upon people’s ignorance of the law and the intimidation of them being assailed by a system that relies upon imprisonment and threats for its survival.

Now I will examine the various types of ways an offense is charged and the legal requirements and defects as they are used today.

What is a charge?

(725 ILCS 5/102‑8) (from Ch. 38, par. 102‑8)     Sec. 102‑8. “Charge”.  “Charge” means a written statement presented to a court accusing a person of the commission of an offense and includes complaint, information and indictment. (Source: Laws 1963, p. 2836.)

So a charge is a written statement in the form of a complaint, information, or indictment which charges an offense. Let’s examine what an “offense” is.

(725 ILCS 5/102‑15) (from Ch. 38, par. 102‑15)  Sec. 102‑15. “Offense”. “Offense” means a violation of any penal statute of this State. (Source: P.A. 76‑1796.)

Well, that seems clear enough, but what do they mean by “penal statute”? I do not find a definition for penal statute. There are various types of offenses, generally speaking. These include ordinance violation, petty offense, misdemeanor, and felony. What I do find is a definition for “penal institution”, which may shed light on what a penal statute is, since violators of penal statutes would be sentenced to a penal institution.

(720 ILCS 5/2‑14) (from Ch. 38, par. 2‑14)  Sec. 2‑14. “Penal institution”.  “Penal institution” means a penitentiary, state farm, reformatory, prison, jail, house of correction, or other institution for the incarceration or custody of persons under sentence for offenses or awaiting trial or sentence for offenses. (Source: Laws 1961, p. 1983.)

So it would appear that offenses only apply to those which include the possibility of someone being sentenced to serve time in some sort of jail or other form of confinement. For a good layman’s breakdown of the different types and their corresponding punishment I found the Illinois State Bar Association to be very helpful:

In Illinois, most traffic charges are categorized as either “petty” or “misdemeanor” offenses.

Petty offenses are those punishable by fine only. They include stop sign and red light violations, most speeding tickets, lane change violations and driving without insurance. Fines range from $1.00 to $1,000. Fines are either payable on the day assessed or on such later date as the court may direct.

Misdemeanors are divided into three (3) classes, referred to as Class A, B and C.

Class A is the most serious. It includes violations such as driving under the influence, speeding 40 or more miles over the posted speed limit, driving while license suspended or revoked, reckless driving or leaving the scene of an accident. The possible penalties for Class A misdemeanors are up to 364 days in jail and/or fines up to $2,500. Day for day good time credit applies to most misdemeanor jail sentences.

Class B misdemeanors, such as selling or providing a fraudulent driver’s license or permit, carry a possible penalty of up to six (6) months in jail and/or fines up to $1500.

Class C misdemeanors, such as drag racing, are punishable by jail up to thirty (30) days and/or fines up to $1,000.

Examining the above, it appears that those items listed under “petty offense” and which have a punishment by fine only are not really offenses. A penal institution is for receiving those who are subject to confinement for violating a penal statute and petty offenses are not included in that category. While on this subject, we need to also look at ordinance violations. Those are particularly interesting because they have been deemed to be “quasi-criminal” in nature.

While regarding ordinance-violation proceedings as civil in form, this Court has traditionally characterized them as quasi-criminal. City of Danville vs. Hartshorn, 53 Ill.2d 399, 292 N.E.2d 382 (1973)

Civil cases are of two kinds, those purely civil and those quasi criminal. A quasi criminal case is not a criminal case but is a civil case, somewhat resembling in its nature a criminal case. That a quasi criminal offense is not a criminal offense as defined by the criminal code is, under the authorities, clear. Wiggins v. City, 78 Ill. 375, Tully v. Northfield, 6 Ill.App. 358

Quasi-Criminal Nature (See also Quasi and see the title Penalties) – The constitution of Illinois conferred upon a certain court jurisdiction in cases of a quasi-criminal nature. It was held that the phrase “quasi-criminal nature” was intended to embrace all offenses not crimes or misdemeanors, but which are in the nature of crimes, and which are punished, not by indictment, but by forfeitures and penalties. It includes all qui tam actions, prosecutions for bastardy, informations in the nature of quo warranto, and suits for the violations of ordinances. Wiggins v. Chicago, 68 Ill. 372

Quasi-Criminal Cases – The violation of an ordinance is embraced in the phrase “of a quasi-criminal nature.” Wiggins v. Chicago, 68 Ill. 372

I do not mean to digress from the theme of this piece, but we are determining how the State charges offenses and in order to do that we must understand what offenses are. So, if the criminal code, criminal procedure…etc. apply only to “offenses” which are a violation of a “penal statute”. Therefore, to wrap up this discussion on ordinances we find:

Police can only arrest you with a warrant, if they witness a crime, or have reasonable grounds to believe an offense is being, or has been, committed.

725 ILCS 5/107-2. Arrest by Peace Officer Arrest by Peace Officer. (1) A peace officer may arrest a person when:(c) He has reasonable grounds to believe that the person is committing or has committed an offense.

Offenses are violations of the State’s penal statutes.

725 ILCS 5/102-15. “Offense” “Offense.” “Offense” means a violation of any penal statute of this State.

Municipal ordinance violations are not offenses.

Municipal ordinance violations do not fall within the definition of an “offense” under either the Criminal Code or the Code of Criminal Procedure. City of Champaign v. Torres, 214 Ill.2d 234, 824 N.E.2d 624 (2005)

Therefore, you cannot be arrested for violating an ordinance without a warrant. Period. If you may only be arrested without a warrant for an offense, and ordinances are not offenses, you cannot be arrested for violating an ordinance without a warrant, even if in the presence of a police officer. However, there are procedures in place for prosecuting ordinance violations, and those are outlined next. There must be a summons or a warrant supported by affidavit, which means it must be sworn to by the person alleging the violation. If you are served notice by mail it must be done by certified mail, return receipt requested. The police may serve summons for an ordinance violation, but again, there must be a sworn affidavit before the summons can be issued.

65 ILCS 5/1-2-9. Summons or warrant; trial without delay§ 1-2-9. Except as provided in Section 1-2-9.1 of this Act, in all actions for the violation of any municipal ordinance, the first process shall be a summons or a warrant. A warrant for the arrest of an accused person may issue upon the affidavit of any person that an ordinance has been violated, and that the person making the complaint has reasonable grounds to believe that the party charged is guilty thereof. Every person arrested upon a warrant, without unnecessary delay, shall be taken before the proper officer for trial.

65 ILCS 5/1-2-9.1. Service by certified mail§ 1-2-9.1. Service by certified mail. In all actions for violation of any municipal ordinance where the fine would not be in excess of $750 and no jail term could be imposed, service of summons may be made by the city clerk by certified mail, return receipt requested, whether service is to be within or without the State.People ex rel Devine v. $30,700 U.S. Currency, 199 Ill. 2d 142, 766 N. E. 2d 1084 (2002)

65 ILCS 5/1-2-11. Sheriff; service of process; arrest; housing authority police(b) Police officers may serve summons for violations of ordinances occurring within their municipalities.725 ILCS 5/107-11.

When summons may be issued(c) The summons may be served in the same manner as the summons in a civil action, except that police officers may serve summons for violations of ordinances occurring within their municipalities.

65 ILCS 5/1-2-9. Summons or warrant; trial without delay§ 1-2-9. Except as provided in Section 1-2-9.1 of this Act, in all actions for the violation of any municipal ordinance, the first process shall be a summons or a warrant. A warrant for the arrest of an accused person may issue upon the affidavit of any person that an ordinance has been violated, and that the person making the complaint has reasonable grounds to believe that the party charged is guilty thereof. Every person arrested upon a warrant, without unnecessary delay, shall be taken before the proper officer for trial.

To close the book on ordinances, they are not complaints, informations, or indictments. For an illustrative case, read City of Danville v. Hartshorn.

While I am making fine legal distinctions, we need to examine some things that are not complaints, informations, or indictments. For instance, many people believe that traffic offenses are criminal offenses. Most of the preceding definitions come from the Illinois Criminal Code of 1963 and the Code of Criminal Procedure. However, traffic or vehicle offenses are not criminal  nature, but civil or administrative infractions. The jurisdictions of each are different. Of course, we all believe we are in Illinois and Illinois is considered a State. However, the law goes on to define what a State is for the purposes of different parts of the statute. We are primarily dealing with criminal law in this article, but the courts often intermingle traffic offenses which make people believe they face criminal penalties. Depending on where you are in relation to “this State”, which may or may not mean Illinois, the jurisdiction or right of the State to even bring charges against someone, may differ. First we’ll look at the definition of “State” as it is used in the criminal code:

Quoting the Criminal Code of 1961 – (720 ILCS 5/2‑21) (from Ch. 38, par. 2‑21)  Sec. 2‑21. “State”.  “State” or “this State” means the State of Illinois, and all land and water in respect to which the State of Illinois has either exclusive or concurrent jurisdiction, and the air space above such land and water. “Other state” means any state or territory of the United States, the District of Columbia and the Commonwealth of Puerto Rico. (Source: Laws 1961, p. 1983.)

Quoting the Illinois Motor Vehicle Code – (625 ILCS 5/1‑195) (from Ch. 95 1/2, par. 1‑195) Sec. 1‑195. State.  A state, territory or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico or a province of the Dominion of Canada. (Source: P.A. 76‑1586.)

Look closely at the two definitions. Do not believe that they are interchangeable. The legislature defined them this way specifically for the statute to which they apply. When you deal with criminal law you are dealing with the actions of people. Crime is committed by individuals against individuals or their property. Corporations are also considered “persons” and can be held criminally responsible for certain act, but crimes are committed by people against people. The State of Illinois is formed by the people who are represented by the legislature. Crimes against people are reflected in the State of Illinois Criminal Code. However, vehicular or traffic infractions cannot apply to the people generally as criminal offenses. The word State does not necessarily mean Illinois. There are commercial offenses which include commerce intrastate and interstate. The US Constitution gives Congress the power to regulate commerce. Therefore, I posit that traffic offenses apply to commercial activities under the regulations promulgated by Congress regarding interstate and intrastate commerce. That authority is reflected in the Vehicle Code as penalties imposed by the State, but not the State of Illinois. State, in that sense, is a commercial jurisdiction that co-exists with the common law jurisdiction of criminal statutes. The definition of State, as used in the Criminal Code actually excludes the definition of State used in the Vehicle Code. Vehicle Code offenses actually occur in the State known as the “other State” defined in the Criminal Code.

Summary of ordinance violations, petty offenses, and traffic violations – An arrest cannot be made for petty offenses or traffic violations. Arrests can be made for ordinance violations only if there is a sworn affidavit filed. Traffic tickets are  not complaints, informations, or indictments since there is not a sworn complaint presented to a court and corresponding arrest warrant. I will touch on this in more detail as I get into the analysis of the various forms used to charge or allege offenses.

Complaint

What it is: (725 ILCS 5/102‑9) (from Ch. 38, par. 102‑9)  Sec. 102‑9. “Complaint”.  “Complaint” means a verified written statement other than an information or an indictment, presented to a court, which charges the commission of an offense. (Source: Laws 1963, p. 2836.)

Next, we’ll look at what the Illinois statutes say about arrest by complaint. I’ll emphasize particular words and phrases in the statute and then post copies of a verified complaint and arrest warrant.

(725 ILCS 5/107‑9) (from Ch. 38, par. 107‑9)  Sec. 107‑9.

Issuance of arrest warrant upon complaint. (a) When a complaint is presented to a court charging that an offense has been committed it shall examine upon oath or affirmation the complainant or any witnesses.

(b) The complaint shall be in writing and shall:

(1) State the name of the accused if known, and if  not known the accused may be designated by any name or description by which he can be identified with reasonable certainty;

(2) State the offense with which the accused is charged;

(3) State the time and place of the offense as definitely as can be done by the complainant; and

(4) Be subscribed and sworn to by the complainant.

(c) A warrant shall be issued by the court for the arrest of the person complained against if it appears from the contents of the complaint and the examination of the complainant or other witnesses, if any, that the person against whom the complaint was made has committed an offense.

(d) The warrant of arrest shall:

(1) Be in writing;

(2) Specify the name, sex and birth date of the person to be arrested or if his name, sex or birth date is unknown, shall designate such person by any name or description by which he can be identified with reasonable certainty;

(3) Set forth the nature of the offense;

(4) State the date when issued and the municipality or county where issued;

(5) Be signed by the judge of the court with the title of his office;

(6) Command that the person against whom the complaint was made be arrested and brought before the court issuing the warrant or if he is absent or unable to act before the nearest or most accessible court in the same county;

(7) Specify the amount of bail; and

(8) Specify any geographical limitation placed on the execution of the warrant, but such limitation shall not be expressed in mileage.

(e) The warrant shall be directed to all peace officers in the State. It shall be executed by the peace officer, or by a private person specially named therein, at any location within the geographic limitation for execution placed on the warrant. If no geographic limitation is placed on the warrant, then it may be executed anywhere in the State.

(f) The warrant may be issued electronically or electromagnetically by use of a facsimile transmission machine and any such warrant shall have the same validity as a written warrant. (Source: P.A. 86‑298; 87‑523.)

First of all, notice the word “shall”. Shall, is a direction to the court. It is a command. It is not discretionary. The judge or whoever the command is being directed towards must do take that action as a requirement for the statute. A complaint is presented to a court charging an offense. That means something other than a petty offense or ordinance violation, punishable by fine only. Here is something interesting. It also states, “shall examine upon oath or affirmation the complainant or any witnesses.” This means the court must examine the complainant or any witness with them being either orally sworn in. The complaint itself must be in writing and the complainant must also be examined by the judge under oath or affirmation before issuing an arrest warrant.

Although an arrest warrant may be issued only upon a showing of probable cause, it does not necessarily follow that a demonstration of probable cause must be made in complaint upon which arrest warrant is issued; in issuing arrest warrant, judge is not bound by four corners of complaint, but may base a determination of probable cause upon his required examination of complainant or witnesses. People v. Collins,App. 1 Dist.1979, 26 Ill.Dec. 165, 70 Ill.App.3d 413, 387 N.E.2d 995. Criminal Law 217

What is being said here is that probable cause does not rest solely with the complaint. It is required that the judge examine the complainant or witness, and upon that testimony he may find probable cause. This is because not everyone may possess the faculties required to pen a proper complaint and what may be lacking in the complaint is supplemented by the testimony of the complainant.

In compliance with this paragraph, judge issuing arrest warrants properly examined complainant to determine probable cause prior to issuing warrants over his signature. People v. Collins, App. 1 Dist.1979, 26 Ill.Dec. 165, 70 Ill.App.3d 413, 387N.E.2d 995. Criminal Law217

Where complaint was signed by complainant and was acknowledged before notary public, who was not an associate circuit judge or magistrate, and after complaint was signed and sworn to, it was presented to associate circuit judge, who heard no testimony, and solely on basis of examination of complaint, ordered warrant of arrest to issue, warrant was properly quashed because of failure of associate circuit judge to examine complainant or other witnesses as required by this paragraph.People v. Krumery, App.1966, 74 Ill.App.2d 298, 220 N.E.2d 241. Criminal Law217

What is being said here is what illustrates the necessity for the judge to examine the complainant or witness. It is important to keep this in mind when making your complaint because if the judge does not examine the complainant or witness it will prove fatal to your case. I can envision a situation where a judge will sabotage a case by failing to examine the complainant or witness, as in what took place in the above case. I would recommend being adamant about the judge examining you or the witness to ensure no defect in the warrant ensues which would result in a dismissal.

Let’s review an alleged “verified complaint” and ensuing arrest warrant. This complaint is made out by the State’s Attorney and verified or sworn to by the State Police officer. The State’s Attorney does not sign the complaint, but rather stamps it.  The warrant is likewise unlawful. The specified “offense” is “failure to appear or pay charge” when the complaint is for unlicensed driving. The warrant is not supported by the complaint. The defendant in this case was ticketed on July 29, 2010 and the verified complaint was not filed August 25, 2010 upon his filing a demand for a verified complaint. Until a complaint is filed and the complainant examined by a judge there can be no warrant and no jurisdiction. The warrant was not issued until September 14, 2010, and even then it was issued for a non-existent offense.

Dealing with the issue of the “signing” of the information or complaint, the statutes deal with this very issue:

(5 ILCS 70/1.15) (from Ch. 1, par. 1016)     Sec. 1.15. “Written” and “in writing” may include printing, electronic, and any other mode of representing words and letters; but when the written signature of any person is required by law on any official or public writing or bond, required by law, it shall be (1) the proper handwriting of such person or, in case he is unable to write, his proper mark or (2) an electronic signature as defined in the Electronic Commerce Security Act, except as otherwise provided by law. (Source: P.A. 90‑759, eff. 7‑1‑99.)

Of course, it references the Electronic Commerce Security Act which, in my opinion, does not apply to signatures on charging documents. That act can be read here and is evidently intended to deal with matters in commerce or commercial considerations, hence the name.

 

So what we have here is a defective complaint and defective warrant. The complaint has not been verified even though it is sworn to because of two things. It is signed by the State’s Attorney. A complaint is used by a complainant to charge an offense, not the State’s Attorney. The State’s Attorney uses an information. If the police officer signed the complaint then it would be proper, but he didn’t. Second, the affidavit below was sworn to by the officer, not the State’s Attorney. Only the person making the complaint can sign the affidavit. Since they are the one making the charge they also must be the one swearing to it. If you look at the signature if the State’s Attorney, you will also see it is a rubber stamp. There is no telling who actually signed, or stamped, this complaint. I also posit that the judge never examined the complainant as to the facts alleged in order to issue the warrant. The warrant which was issued is for a non-offense, failure to appear. The complaint is for unlicensed driving. How does a judge issue a warrant for an offense that does not appear on the complaint? This is an outright fraud and the court never acquired jurisdiction in this case. This, however, is not uncommon. It happens all the time to many people and they never look at the charging documents for defects like this because they do not know. They appear in court and enter pleas to charges that are not properly filed, thereby submitting to jurisdiction. They are undone by their own ignorance.

Now we’re going to look at an information. The difference between an information and a complaint is that a complaint is presented by someone other than the State, such as you or I. I disagree that police can sign as a complainant since they work for the State. Police should go to the State’s Attorney with the charges and the State’s Attorney then file an information. If a police officer would file a complaint then he must do so in writing and swear to it, as well as present it to a court to then be examined by the judge before issuing a warrant. An information is presented by a State’s Attorney, but it must also be sworn to by him and presented to a court before a warrant can be issued. Remember, without a warrant there is no jurisdiction. There is a distinction between a complaint and an information. What I will show you next is an information that looks remarkably like the previous complaint, only it is titled Information. Same rules apply to both, only the Information is presented by the State’s Attorney. Take a look and see if there is any difference aside from the caption.

I will be concluding this piece with an analysis of traffic tickets and Uniform Traffic Citation and Complaint. This has been discussed in-part above, but examples of requirements and common defects will be included.

 

An Analysis of the Collinsville Yard Sale Permit Ordinance

Download this article at Scribd.com http://www.scribd.com/doc/53587936/An-Analysis-of-Yard-Sale-Permit-Ordinances-in-Illinois

This article contains some legal interpretation and analysis. For those who wish to gain a deeper understanding of the issue you are welcome to read the entire article. For the sake of brevity and conciseness I will answer the question of whether or not a permit is required to conduct a yard sale in Collinsville, Illinois. If you are a private individual selling your personal property or items that were not purchased for the purpose of retail sale then you do not need a yard sale permit. You must be involved in a “business” activity of selling “merchandise” advertised as a “yard sale”, “garage sale”, “tag sale”, “basement sale”, or “moving sale”. People selling their property from their yards, garages, basements, or otherwise need not apply for, nor display, the permit.

Even though this article deals with the City of Collinsville’s ordinance I would posit that it applies equally to all municipalities in Illinois since the authority for cities to license is found in Illinois Statutes. In order for a municipality to license this type of activity the statute would have to identify that authority. I would guess that all municipalities who do license yard sales implement language similar to Collinsville.

I received an email from someone who recently moved to Collinsville and was investigating what he was told about needing to procure a yard sale permit. He wished to remain anonymous. He had inquired with the City, using an online form for asking questions. The email forwarded to me read like this:

—————————————————————————————-

Mr. McCoy,

I came upon your website while researching ordinances for Collinsville, Il. You appear to have a bit of history regarding the application of ordinances. I read your piece on the Collinsville Business License Ordinance and thought this may be of some interest to you. I made an inquiry through the City’s FAQ page regarding a yard sale permit. I received the response below. I was curious whether you have studied the yard sale permit provision and the relevance or applicability it has with the Business License Ordinance in general. Thank you for your time. Your website is very informative. While I do not agree with 100% of your conclusions on some things, your analysis and foundation appear to be very well thought out. Thank you for your time.

Your Question:
I was told I needed a permit for a yard sale but the yard sale ordinance comes under the business license ordinance. I am not acting as a business when I sell my personal property. Does the ordinance apply to private men or women who sell their personal property?


Our Solution: (This is the email response from the City)
Thank you for using our system.
The yard sale ordinance has nothing to do with the business license ordinance.  You can obtain a yard sale permit for $2 at the front counter of City Hall (where you pay your water bill).  It can be obtained any time between 8:30 am and 5 pm and it only takes a minute to issue.  You can get it up to the day before your sale starts.  They will give you a copy of the restrictions when you obtain your permit–where you can put your signs, how many sales you are allowed in a year, etc.

Sincerely,

—————————————————————————————-

I want to thank the gentleman for his email as this is something I have studied in the past, but which many people have no interest in learning the truth. For the $2 fee, most would rather trod down to City Hall and get the permit rather than deal with the applicability of the code to their situation. I’m glad this gentleman asked.

To be clear, The Yard Sale Permit has nothing to do with the “Business License Ordinance” as the gentleman stated in his inquiry to the City, and the City was correct in their response to the same question. The yard sale ordinance actually comes under Business License and Regulation. What is commonly referred to as the Business License Ordinance is the Business Registration Ordinance. The Business License Ordinance is what I refused to submit to as working out of my home. That story is here.

So, let’s take a look at the Collinsville Yard Sale Permit Ordinance.

Looking at the City Codes online I see the yard sale ordinance is under Title 5,  which is Business License and Regulations.

It would seem that ordinances under that Title would relate to the Title. “Yard Sales” is under chapter 5.20 under Title 5, which is ” Business Licenses and Regulations”.

Let’s take a look at the first part of Title 5, which applies to all the subtitles as well:

Chapter 5.04
BUSINESS LICENSES GENERALLY*
__________
*State law references:   General authority of city to license, 65 ILCS 5/11-42-1 et seq.
__________

Sec. 5.04.010.  Public policy.
It is the public policy of the City that the public health, safety, morals, interest, convenience, and necessity of the City and the residents thereof require the regulation of businesses and the fixing of a reasonable license fee related thereto.
(Ord. No. 3399, 8-11-2003)

Sec. 5.04.020.  Purpose and jurisdiction.
As each business located in the City is a basic part of and effects the physical and economic well-being of the City, necessitating special services from the City in the form of health inspections and other services, such businesses shall in all respects be in full compliance with the provisions hereinafter contained in this chapter. This chapter is designed to provide for the means whereby the City may render the necessary inspections and services to businesses in order to promote, protect, and safeguard the public safety, health, and welfare of the citizens of the City and to enable the maintenance of an accurate record of businesses located and carrying on commercial activities or commerce within the City. – My question is, what health inspections or other services do yard sales require? Also, looking at the last part of the ordinance you will see “businesses located and carrying on commercial activities or commerce…”  Does that sound like mom, pop, or Joe selling their “stuff”?
(Ord. No. 3399, 8-11-2003)

Sec. 5.04.030.  Definitions.
The following words and phrases as used in this chapter shall have the following meaning, unless a different meaning is required by the context:
Business means any vocation, occupation, profession, enterprise, establishment, concern, or any other type of activity, with the exception of those exemptions as otherwise provided for in this chapter.
Person means any individual, firm, association, sole proprietorship, partnership, corporation, trust, or any other legal entity, except for such person as may be organized as an Illinois not-for-profit corporation or governmental bodies properly organized under the law of the State or of the United States of America.
(Ord. No. 3399, 8-11-2003)

Title 5, where the Yard Sale Ordinance is located, states at 5.04, Business Licenses Generally, “*State law references: “General authority of city to license, 65 ILCS 5/11-42-1 et seq.”

If you go to the Illinois Compiled Statutes under that section, you will see, “(65 ILCS 5/11‑42‑5) (from Ch. 24, par. 11‑42‑5) Sec. 11‑42‑5. The corporate authorities of each municipality may license, tax, regulate, or prohibit hawkers, peddlers, pawnbrokers, itinerant merchants, transient vendors of merchandise,…. (Source: P.A. 96‑1516, eff. 2‑4‑11.)

Remember that word, “Merchandise”.  The statute which the City references as its general authority to license does not list private individuals selling their property. The Yard Sale Ordinance embraces “vendors of merchandise.

Likewise, under the Public Policy Statement for Title 5 it states:

Sec. 5.04.010.  Public policy.It is the public policy of the City that the public health, safety, morals, interest, convenience, and necessity of the City and the residents thereof require the regulation of businesses and the fixing of a reasonable license fee related thereto.(Ord. No. 3399, 8-11-2003)”

Again, the word “business” is used to define the purpose of the Title. So, when viewing the Yard Sale Ordinance, it states:

Sec. 5.20.010.  Definition.Yard sale  means any display of merchandise for the purpose of exchanging it for legal tender or barter at a location not otherwise regularly used or specifically designated for the sale or exchange of merchandise. Events commonly known as “garage sales,” “tag sales,” “moving sales,” or “basement sales” shall be included in the definition of a yard sale. (Ord. No. 3909, 6-11-2007)”

Well, it sounds like if you have a “yard sale” you are exchanging merchandise for legal tender, right? Or are you? I would suggest that if a business uses the terms, “yard sale”, or any of the other terms defined in Sec. 5.20.010 then the permit applies to you. Look at it like this; what the ordinance does is prohibit businesses from selling merchandise under the pretense of a “yard sale”.

Nowhere in Title 5 is the word “merchandise” defined. The Title brings Yard Sales under the regulation of “Businesses” with a distinction of selling “merchandise”. So, the Yard Sale Ordinance involves businesses selling merchandise.

So, what is the definition of “merchandise“? The dictionary says, “–noun1.the manufactured goods bought and sold in any business.2.the stock of goods in a store.3.goods, especially manufactured goods; commodities.
Legal dictionaries often use the following definition”MERCHANDISE. By this term is understood all those things which merchants sell either wholesale or retail, as dry goods, hardware, groceries, drugs, &c. It is usually applied to personal chattels only, and to those which are not required for food or immediate support, but such as remain after having been used or which are used only by a slow consumption. Vide Pardess. n. 8; Dig. 13, 3, 1; Id. 19, 4, 1; Id. 50, 16, 66. 8 Pet. 277; 2 Story, R. 16, 53, 54; 6 Wend. 335.

My contention is that my personal property is NOT merchandise. It is personal property. I am not selling it as a business. Merchandise is a commercial term, as is business. When I engage another individual with the intent of exchanging my property for valuable consideration it is nobody’s business, no pun intended. The City has no authority to control such activity. Looking at the language of the ordinance and how it is organized speaks clearly to that fact, if you don’t belabor it with preconceptions and misinformation.

I wanted to address one more thing, under definitions there is the word “person”. Some people capitulate because of that one word. They believe, “If it says person, then that’s me, and I have to get the permit.” Look at it this way, what if you are not a “person”? Sure, you may think you are, but are you the ‘person” defined in Title 5? What does Title 5 say a “person” is?

Let’s look at how the term “person” is  used throughout Title 5.
Sec. 5.04.030.  Definitions. Person  means any individual, firm, association, sole proprietorship, partnership, corporation, trust, or any other legal entity, except for such person as may be organized as an Illinois not-for-profit corporation or governmental bodies properly organized under the law of the State or of the United States of America.
(Ord. No. 3399, 8-11-2003)

Sec. 5.06.020.  Definitions. Person means any individual, firm, association, sole proprietorship, partnership, corporation, trust, or any other legal entity, including not-for-profit organizations, but excluding governmental bodies properly organized under the law of the State or of the United States of America.

(Ord. No. 3400, 8-11-2003)

Sec. 5.16.010.  Definitions. Person, firm, corporation or association  includes the following: Any person, firm, corporation or association which owns any cigarette vending machines; the person, firm, corporation or association in whose place of business any such machines are placed for use by the public; and the person, firm, corporation or association having control over such machine; provided, however, that the payment of such fee by any person, firm, corporation or association enumerated in this section shall be deemed a compliance with this section.

(Code 1996, § 5.16.010)
Sec. 5.64.020.  Definitions. Person  means any natural person; firm; joint venture, including all participants; partnership, including all partners; association, social club, or fraternal organization, including all officers and directors; corporation, including all officers, directors, and significant stockholders; estate; trust; business trust; receiver; or any other group or combination acting as a unit.
Sec. 5.70.020.  Definitions. Person means any individual, partnership, firm, association, joint stock company, corporation, venture, sole proprietorship, or combination thereof made up of whatever formal or legal character.
Now, there are some subtitles that do not have definitions for the term “person”. In that case the subtitle must use the definition under the main heading at Sec. 5.04.030.  Definitions. However, the Yard Sale Permit Ordinance does not define “person”, thereby forcing us to consult the main heading definition at Sec. 5.04.030.  Definitions. Person is not used as a word, but rather a legal “term”. Once a word has been defined in a piece of legislation it loses its common usage meaning and adopts the definition specified in the legislation.
Let’s look at this definition. It states, “Person  means any individual, firm, association, sole proprietorship, partnership, corporation, trust, or any other legal entity, except for such person as may be organized as an Illinois not-for-profit corporation or governmental bodies properly organized under the law of the State or of the United States of America.” If you notice, there things other than people defined as persons. The definition begins with the word “individual”, but you can’t rely upon that as applying to you.
There is a rule of statutory construction called Ejusdem Generis – (eh-youse-dem generous) v adj. Latin for “of the same kind,” used to interpret loosely written statutes. Where a law lists specific classes of persons or things and then refers to them in general, the general statements only apply to the same kind of persons or things specifically listed. Example: if a law refers to automobiles, trucks, tractors, motorcycles and other motor-powered vehicles, “vehicles” would not include airplanes, since the list was of land-based transportation.
This means the classes of things listed must be of the same kind as the others in the definition. So, breaking it apart we see this:
Person  means any individual, firm, association, sole proprietorship, partnership, corporation, trust, or any other legal entity, except for such person as may be organized as an Illinois not-for-profit corporation or governmental bodies properly organized under the law of the State or of the United States of America.
Let ‘s see what classified the things in this definition.
Individual – Presumed to be a flesh and blood being, but it must conform to Ejusdem Generis.
Partnership – This is a legal entity.
Firm – This is a legal entity.
Association – This is a legal entity.
Joint Stock Company – This is a legal entity.
Corporation – This is a legal entity.
Trust – This is a legal entity.
Or any other legal entity – This is the giveaway.
The line, “or any other legal entity” means that everything preceding is a legal entity, and not a natural entity. A legal entity exists through an act of law, like other things on the list. To be any of them you must make application to the State. They are all defined, and controlled, by the legislature. The legislature never acquired the power to define private people or their dealings. “Or any other legal entity” thereby shows everything in the definition conforming to Ejusdem Generis since the classification is for “legal entities”. If you believe yourself to be a legal entity and engaged in the business of selling merchandise under the label of a yard sale then you need a yard sale permit. If you are a private individual selling your personal property you need no such permission from anyone.
I hope this clears things up a bit. If you have any questions feel free to use my contact form to reach me.

 

Police Have NO Duty To Protect Individuals

THE POLICE HAVE NO DUTY TO PROTECT INDIVIDUALS!

There is much ado, particularly where I live in St. Clair County, about budget shortfalls and the resulting lay-offs of police. The media is commenting on possible “safety” issues and residents express concern over lack of protection. In reality, there is no protection by police. That is not their job. If it were, then there would be some remedy at law for their failing to protect anyone. People have made such a claim in the past and the courts have opined on the fallacious belief that police are for anyone’s protection.

People are responsible for their own protection. It is insane to think that another man will respond to a plea for help from someone he has never met in such fashion so as to prevent imminent harm, or to otherwise identify impending harm and prevent it. People disarm themselves and rely upon an emergency phone call to keep them from violence. Government prefers it that way, because for every case where an individual suffered harm, they ask for more money to pay more police; lending to the perception that one day we all will have our own armed guard.

Now, if police actually addressed crime, that being violent acts perpetrated by people against people rather than legislative prohibitions such as drugs, motor vehicles, ordinance violations… there would be less demand for such police and thereby lower budgets. It has gotten to the point where police inject themselves into our private affairs, not because they care for our safety, but because they are looking for any possible transgression for which to arrest someone and reap financial gain for the State through fines. This also applies to roadside checkpoints where they look for seatbelt violations and impaired drivers. It is an illusion of safety, when it is really a revenue generating endeavor. The State profits from the imperfections of people. I am not threatened by unlicensed or un-belted drivers, nor am I threatened by someone who has a .1 blood alcohol level and competently operates their vehicle.

Fewer police does not mean more safety, it means more freedom to non-violent people. More police means a false sense of security by insecure or frightened people who want everyone to pay for their illusory safety.

Forget about police having a duty to protect you. There is no such thing. I’ve linked to court cases which say the same thing.

“Protect and to serve”, is as binding as “Good to the Last Drop”: IT IS ONLY A SLOGAN as the following court rulings clearly indicate:

Bowers v. DeVito, 686 F.2d 616 (7th Cir. 1982) (no federal constitutional requirement that police provide protection)

Calogrides v. Mobile, 475 So. 2d 560 (Ala. 1985); Cal Govt. Code 845 (no liability for failure to provide police protection)

Davidson v. Westminster, 32 Cal.3d 197, 185, Cal. Rep. 252; 649 P.2d 894 (1982) (no liability for failure to provide police protection)

Stone v. State 106 Cal.App.3d 924, 165 Cal Rep. 339 (1980) (no liability for failure to provide police protection)

Morgan v. District of Columbia, 468 A.2d 1306 (D.C.App. 1983) (no liability for failure to provide police protection)

Warren v. District of Columbia, 444 A.2d 1 (D.C.App 1981) (no liability for failure to provide police protection)

Sapp v. Tallahassee, 348 So.2d 363 (Fla. App. 1st Dist.), cert. denied 354 So.2d 985 (Fla. 1977); Ill. Rec. Stat. 4-102 (no liability for failure to provide police protection)

Keane v. Chicago, 98 Ill. App.2d 460, 240 N.E.2d 321 (1st Dist. 1968) (no liability for failure to provide police protection)

Jamison v. Chicago, 48 Ill. App. 3d 567 (1st Dist. 1977) (no liability for failure to provide police protection)

Simpson’s Food Fair v. Evansville, 272 N.E.2d 871 (Ind. App.) (no liability for failure to provide police protection)

Silver v. Minneapolis, 170 N.W.2d 206 (Minn. 1969) (no liability for failure to provide police protection)

Wuetrich V. Delia, 155 N.J. Super. 324, 326, 382, A.2d 929, 930 cert. denied 77 N.J. 486, 391 A.2d 500 (1978) (no liability for failure to provide police protection)

Chapman v. Philadelphia, 290 Pa. Super. 281, 434 A.2d 753 (Penn. 1981) (no liability for failure to provide police protection)

Morris v. Musser, 84 Pa. Cmwth. 170, 478 A.2d 937 (1984) (no liability for failure to provide police protection)