por Marvin J. Ramirez
Marvin Ramirez
(This is the last of a three-part series)
This series started with a letter to the San Francisco Board of Supervisors requesting them to consider providing a driving permit – not a license – to those undocumented immigrants living and taking sanctuary in the City and County of San Francisco – under the sanctuary law.
Our previous two editorials on the subject describe how driving is a right, not a privilege, as suggested and presumed by the law of California, as opposed to several federal court decisions, that show that in fact, states cannot infringe on those rights via the requirement of a State driver’s license.
(If you did not read the past two parts, please visit: https://elreporterosf.com/editions/?q=node/1115 for the first part. For the second part, visit: https://elreporterosf.com/editions/?q=node/1171.
by Jack McLamb
Here’s an interesting question. Is ignorance of these laws an excuse for such acts by officials?
If we are to follow the letter of the law, (as we are sworn to do), this places officials who involve themselves in such unlawful acts in an unfavorable legal situation. For it is a felony and federal crime to violate or deprive citizens of their constitutionally protected rights. Our system of law dictates that there are only two ways to legally remove a right belonging to the people.
These are (1) by lawfully amending the constitution, or (2) by a person knowingly waiving a particular right.
Some of the confusion on our present system has arisen because many millions of people have waived their right to travel unrestricted and volunteered into the jurisdiction of the state. Those who have knowingly given up these rights are now legally regulated by state law and must acquire the proper permits and registrations.
There are basically two groups of people in this category:
- Citizens who involve themselves in commerce upon the highways of the state.
Here is what the courts have said about this:
“…For while a citizen has the right to travel upon the public highways and to transport his property thereon, that right does not extend to the use of the highways…as a place for private gain. For the latter purpose, no person has a vested right to use the highways of this state, but it is a privilege…which the (state) may grant or withhold at its discretion…” State v. Johnson, 245 P 1073.
There are many court cases that confi rm and point out the difference between the right of the citizen to travel and a government privilege and there are numerous other court decisions that spell out the jurisdiction issue in these two distinctly different activities. However, because of space restrictions, we will leave it to offi cers to research it further for themselves.
- The second group of citizens that is legally under the jurisdiction of the state are those citizens who have voluntarily and knowingly waived their right to travel unregulated and unrestricted by requesting placement under such jurisdiction through the acquisition of a state driver’s license, vehicle registration, mandatory insurance, etc. (In other words, by contract).
We should remember what makes this legal and not a violation of the common law right to travel is that they knowingly volunteer by contract to waive their rights. If they were forced, coerced or unknowingly placed under the state’s powers, the courts have said it is a clear violation of their rights.
This in itself raises a very interesting question. What percentage of the people in each state have applied for and received licenses, registrations and obtained insurance after erroneously being advised by their government that it was mandatory?
Many of our courts, attorneys and police offi cials are just becoming informed about this important issue and the difference between privileges and rights.
We can assume that the majority of those North Americans carrying state licenses and vehicle registrations have no knowledge of the rights they waived in obeying laws such as these that the U.S. Constitution clearly states are unlawful, i.e. laws of no effect laws that are not laws at all.
An area of serious consideration for every police offi cer is to understand that the most important law in our land which he has taken an oath to protect, defend, and enforce, is not state laws and city or county ordinances, but the law that supercedes all other laws — the U.S. Constitution. If laws in a particular state or local community confl ict with the supreme law of our nation, there is no question that the offi cer’s duty is to uphold the U.S. Constitution.
Every police officer should keep the following U.S. court ruling –discussed earlier — in mind before issuing citations concerning licensing, registration, and insurance:
“The claim and exercise of a constitutional right cannot be converted into a crime.”
Miller v. US, 230 F 486, 489.
And as we have seen, traveling freely, going about one’s daily activities, is the exercise of a most basic right.
