original link: http://www.freejalil.com/blog23.html

Blog #22:
The 13th Amendment—Prison Slavery and Mass Incarceration

The Thirteenth Amendment of the U.S. Constitution reads as follows:

Section 1. Slavery prohibited.
“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

The primary objective of the Thirteenth Amendment was to end a barbaric and vicious period in American history of chattel slavery, peonage, and involuntary servitude. The Thirteenth Amendment was the last Government effort to institute legislative and congressional policy to dispute with the slave trade and mode of slavery being practiced by Southern states. Prior to its enactment, the ordinance of 1787 embraced the concept for the abolition of chattel slavery, as the Supreme Court stated in Bailey v. Alabama, 219 U.S. 219 (1911):

“The language of the Thirteenth Amendment was not new. It reproduced the historic words of the ordinance of 1787 for the government of the Northwest Territory and gave them unrestricted application within the United States and all places subject to their jurisdiction. The plain intent was to abolish slavery of whatever name or form, and all badges and incidents; to render impossible any state of bondage; to make labor free, by prohibiting that control by which the personal service of man is disposed of or coerced for another's benefit which is the essence of involuntary servitude.”

Here, emphasis is directed to the exceptionclause presently in the Thirteenth Amendment that virtually informs slavery in America was never abolished. Slavery and involuntary servitude were institutionalized in the prison system. As aptly stated by the U.S. Supreme Court in its long standing precedent in Ruffin v. Commonwealth, 62, Va (21 Gratt.) 790, 796 (1871):

“A convicted felon, whom the law in its humanity punishes by confinement in penitentiary(s) instead of death, is subject while undergoing punishment, to all the laws which the legislature in its wisdom may enact for the government of that institution and control of its inmates. For the time being, during his term of service in the penitentiary, he is in a state of penal servitude to the state. He has, as a consequence of his crime, not only forfeited his liberty, but all of his personal rights except those which the law in its humanity accords him. He is for the time being a slave of the State. … They are slaves of the State undergoing punishment for heinous crimes committed against the laws of the land. …”

Therefore, there is no adequate or substantial debate on mass incarceration that fails to begin with this understanding of the law. In essence, the U.S. Constitution sanctifies the very vestige and foundation of the inhumane treatment of U.S. prisoners. A conference, debate or meeting that does not begin with a clear understanding of the historic, legal determinant leading to the present reality of mass incarceration, misses the basis in which any discussion of abolition must begin.

In 1994, I wrote in response to a May 12, 1994, Wall Street Journal featured article entitled, “Making Crime Pay—Triangle of Interests Created Infrastructure to Fight Lawlessness—Cities See Jobs; Politicians Sense a Popular Issue and Businesses Cash In—The Cold War of the 90’s”:

“If contemporary history is any indication, it is evident that government and business “Cold War of the 90s” is targeted at the New Afrikan (Black) and Latino community. In searching for people to pillage and conquer for profits, the collusion of government, military, and business interests has turned inward, and now the enemy is us, it is the poor, it is the new immigrants of color, and it is the disenfranchised. … To gain support for this new conquest of manifest destiny, this opening of the new domestic frontier, the general public, i.e., Euro-Americans, must be persuaded to support what ultimately is the resurrection of involuntary servitude and slavery in America. To ensure that this happens, the government’s nefarious alliance with the mass media has created an air of hysteria about crime. It has done so even though the Federal Bureau of Investigation recently reported that crime in America is decreasing—not increasing. The power of the media and government is extremely awesome. It is the power to shape our collective consciousness and attitudes. The politicians are then able to pass into law draconian sanctions—sanctions that appease the will of the people demanding a safe society, but ultimately serve the interest of restructuring the industrial-military-complex, by forging an infrastructure for the proliferation of prison building.”

The unholy “Triangle of Interest” of government, media and business, throughout the 90’s, shaped the public dialogue to grow the prison industrial complex, creating a profit-motive foundation for mass incarceration. Being cognizant of the method in which the U.S. has grown to the distinction of holding more citizens imprisoned than any other industrialized nation, serves to formulate a strategy to deconstruct the prison industrial complex. As such, it is easily discovered the present reality of mass incarceration was planned, it is a result of government public policy, as stated by W.E.B. Dubois, in Black Reconstruction in America: “It was the policy of the State to keep Negro laborer poor, to confine him as far as possible to menial occupations, to make him a surplus labor reservoir and to force him into peonage and unpaid toil.” (1935) (See, also, Report, Asst. Att. Gen. (Charles W. Russell) to Att. Gen. 1908, in Dubois, Occasional Papers, American Negro Academy, No. 15p). Hence, it was the States determination to maintain oppressive living conditions, such conditions that breed crime and eventual imprisonment and slave labor. How else can anyone come to terms with the fact that it costs more to house a prisoner per year than to send a student to college for four years?

Since the growing national debate on mass incarceration has raised the moral bankruptcy of America’s prison policy, the religious community has sought to enjoin a challenge to the prison industrial complex. In “Religion and Revolution,” an essay I wrote in 1999 on the Progressive National Baptist Convention call for the end to jailing and killing of Black youth, I stated: “… For the Progressive National Baptist Convention to require its 2.5 million members and 2,000 churches to take a forward political position on this issue, should serve notice on all religious denominations of the need to aggressively challenge and politically counter state governments and private business prison-building.” However, since 1994, it is believed and alleged the Progressive National Baptist Convention of 1999 dropped the ball, failing to forge a national determination prohibiting the mass incarceration of millions of young people of color.

Ergo, the principle lesson that needs to be confronted to deconstruct the prison industrial complex by the religious community in alliance with legal and progressive organizations is to borne an approach consistent with “liberation theology.” In the above mentioned essay, I expounded that: “With this understanding, we note that liberation theology is to create a fresh theological approach to reflection and praxis, or committed involvement in struggle. Yet, as here argued, the genesis of liberation theology has evolved from the efforts of people wanting to be free of oppression and appealing to God or the divine for intervention of their oppression. Thus Prophet Moses applied liberation theology when he freed the Hebrews from Egyptian domination. The same can be said of Prophet Mohammad (PBUH) when he liberated Mecca from the idolatry of the Arabian clans. Therefore, it is not farfetched to rediscover and qualify theology as a potential liberation force. This is particularly significant, given that Prophet Jesus sought to restore moral and religious principles at a time when Roman oppression prevailed in his land, castigating the money lenders, prostitutes, fraudulent rabbis and avaricious land owners.

Hence, worship in this context is based on the premise there is a need for liberation—to be liberated from conditions that hinder spiritual growth and evolvement, conditions that deny basic human quality of life that allows for the spirit of God to reign. Thus, God becomes the liberator, the spirit of God as the liberator is evoked and religion develops the means and method by which the spirit of a liberating God is manifested. There is no one set pattern in which to evoke or manifest the spirit of a liberating God. Rather, peoples struggling to be liberated must call upon their God in accord to given conditions of their exploitation, and oppression and the form of worship they practice. … The hearing the word of God anew must turn revelation into revolution; in a sense, liberation theology is the spiritual revelation of revolution.” This is what Dr. Martin L. King, Jr., understood when he wrote his “Letter from a Birmingham Jail” challenging the religious community to evoke a liberating God in enjoining the civil rights movement to bring an end to Jim Crow segregation.

Given the task of challenging the multi-layered reality of the New Jim Crow, the prison industrial complex, it behooves the religious community to come to terms with liberation theology praxis. “Liberation theology,” Paulo Freire explains in The Politics of Education, “demands of its followers a knowledge of socio-political science … (and) since science cannot be neutral this demands an ideological choice.” He further explains that the church must be prophetic in its approach, applying the Exodus story to incarnate the spirit of liberation or the God of liberation. Ideological choice in respects to socio-political science definitely puts theopraxis to task, causing its practitioners to consider how best to manifest materially their spiritual faith and inclinations. As stated in the Holy Qur’an, “oppression and tumult is worse than slaughter … fight oppression where you may find it.”

Hence, any theopraxis must, according to the New Afrikan theologian James H. Cones, have the following components: “(1) be a transformation of the self-identity of the communities that have been crushed by oppression and an affirmation of those communities; (2) be a vision of solidarity among the particular communities; (3) and the empowerment coming from an enhanced self-image and commitment to solidarity must be translated into goals for political, socio-economic, and united actions.”

Thereby, it is established that to build a national determination to end mass incarceration and deconstruct the prison industrial complex demands a broad-based uniform and united campaign. The bankrupt moral posture of the U.S. criminal justice system requires a bottom-up restructuring of public policy pertaining to crime and punishment, beginning with a public discussion and policy of redistribution of wealth to end poverty, homelessness, and forge a right to work with living wages program. To ensure money appropriated for prison building or maintenance is not greater than the cost to send a student to 4 years of college. To further raise the moral determinant to abolish prison slavery, by demanding that the exception clause of the 13th Amendment of the U.S. Constitution be excised, removing the profit-motive base from the prison industrial complex. It is this kind of socio-political science that Paulo Freire, Dr. James H. Cones, and Dr. Martin L. King, Jr. forward as the means and method of evolving revelation into revolution.

In fierce struggle,
Jalil Muntaqim
Attica (8/21/13)
(To read Jalil’s essays mentioned here, order his book, We Are Our Own Liberators, from www.freejalil.com)

 

Additional blogs: From Jalil Muntaqim: Blog #21 Ballot or Bullet | Jalil Muntaqim: Blog #20 Blow-Back?! | Blog #19: Targeted Killing

A panel discussion on the Town of Greece v. Galloway, a local legislative prayer case that will be heard by the U.S. Supreme Court on November 6, 2013.

FEATURING:

HEATHER WEAVER, Esq.
Senior Staff Attorney
American Civil Liberties Union
***The ACLU filed an amicus in
support of the plaintiffs.

BRETT HARVEY, Esq.
Senior Counsel
Alliance Defending Freedom
***The Alliance Defending Freedom is
representing the Town of Greece.

video: http://www.youtube.com/watch?v=9mIlnuC6W64

photo: Loret Gnivecki Steinberg (Larry on left, Michael on the right)

Rochester Indymedia interviewed Larry Krieger, a local, Rochester attorney, on October 16, 2013, who is currently fighting the City of Rochester's red light camera ticketing scheme. In this 53 minute interview, Mr. Krieger, represented in court by Michael Steinberg, lays out a convincing and complete case against the use of red light cameras basing his arguments on the lack due process rights and the unconstitutionality of the law.

 

In addition to the lack of due process and vicarious liability issues, he answers questions regarding the issues of public safety versus private profit, hairline and technical offenses versus people blowing through red lights and if there is evidence to support the claim that the cameras increase safety. He talks about other issues such as how his case will impact other, open red light camera ticket cases, if the city has the ability to ruin your credit and whether or not the camera systems are used in racist and/or classist ways. Mr. Krieger ends with what he feels people can do to fight back. He will get a written decision regarding his case against the city from state Supreme Court Justice J. Scott Odorisi before November 8^th, 2013.

 

Enjoy and remember, don't hate the media, be the media! Listen to the audio interview here: http://www.radio4all.net/files/anonymous@radio4all.net/16-1-Larry_Krieger_broadcast_Interview.mp3

Ted Forsyth of Rochester Indymedia: I read your transcript from the first hearing you had at the Parking Violations Bureau from January 23, 2013, and so, I'd like to start there. You made several points in that hearing about the deficiency of the law and why the red light camera program was unconstitutional. Could you talk a little bit about the arguments you made?

...you probably saw that the hearing examiner didn't want to hear it and he immediately dismissed it.

Larry Krieger of Krieger Law: Well sure. In reading the transcript,  you probably saw that the hearing examiner didn't want to hear it and he immediately dismissed it. Of course he didn't know that by doing so, he was laying the foundation for me to have to sue the city over it and that that transcript would be the subject of a law suit.

 

The hearing is really part of the problem. Not only is the law defective on its face that a moving violation gets turned into a civil offense but it's really on the city's books—in the statute and the city code it's considered a civil offense, but really it's more of a quasi-criminal offense which is an important legal concept. This means that they can call it whatever they want, but when they hit you in the pocket—they give you a penalty—that's quasi-criminal meaning that you have the right to full due process—the full bundle of due process rights that the U.S. Constitution guarantees.

What most people remember from high school civics is that the government including city government can't deprive a citizen of liberty or property without due process.

What most people remember from high school civics is that the government including city government can't deprive a citizen of liberty or property without due process. And that means basically a fair hearing and notice of what you're accused of and an opportunity to defend yourself. So that doesn't really happen because in addition to all the problems with the city statute and the equipment itself, once you get to the hearing you don't get any kind of fair opportunity to present your case because first of all you're not in court—and in fact, let's take a step back from that.

The ticket doesn't even come from the Rochester Police Department. It doesn't come from a law enforcement agency.

The ticket doesn't even come from the Rochester Police Department. It doesn't come from a law enforcement agency. The ticket is generated by a private corporation called Redflex and they're a contractor that the city has hired—kind of turned over these city intersections. And the concession to Redflex, which is actually a foreign corporation headquartered in Australia and they have a subsidiary here in Arizona that markets these things, and they have decided where to put these red light cameras based upon their studies of supposedly where they would have the most impact on public safety.

 

But I'd like to come back to that subject because I think they pick intersections that are disproportionately in low income and minority neighborhoods. In my opinion, they found the right demographic and they've targeted citizens that can't really afford to fight City Hall and that they can't afford to pay the $50. That's a real problem, but I'll come back to that.

 

So, you get this ticket that's not from a law enforcement agency. It's actually from something called the Rochester Red Light Photo Enforcement Program. If you decide to challenge it, you have to follow the instructions on the ticket. The ticket says, call this number and request a hearing. Well, when you call that number, they tell you, “Oh no, no. You don't request a hearing and scheduling, you have to come down to the Parking Violations Bureau, sign up and get in line.” The information on the ticket is wrong and when you call they tell you that that's not what you do. You just come down.

So when you come down, you have to take off half of the day to go to the Parking Violations Bureau. And you're not in court. And you know, you're not even in a red light camera court. You're in the city's Parking Violations Bureau. You get over to the Parking Violations Bureau which is in that ugly brick ramp garage on South Avenue and you have to sign up and it takes most of a morning or afternoon.

 

When I went over there it ended up taking three hours. I'm a regular guy but as an attorney I also know my rights and I understand the legal system and administrative bureaus. I spent most of the morning over there. When they call you, you don't get in front of a judge or an elected judicial officer or anybody who's even an independent kind of hearing officer. You get in front of a—I think what they're called is hearing examiners or hearing officers, but they're really per diem attorneys who work under the umbrella of the City Corporation Counsel's office. Which is the legal department for City Hall. They don't tell you this, but I researched it and I found out that the hearing examiner actually takes direction from City Hall. They answer to the corporation counsel's office. Of course, right there, it's like a Las Vegas casino—you know the house is always gonna win.

So they record these hearings on some kind of recording system but one of the problems with the hearing is that before you go, you're entitled to see the so-called evidence against you, which is a 12-second video clip that they post—that Redflex—posts online at something called PhotoNotice.com. It is not run by the city or the police department. It's run by Redflex as a part of their concession—a part of this package that they sell municipalities.

 

You go to the website and it's not the greatest video. But there's this 12-second video clip. You can't download it; they don't allow you to save it to your desktop or your computer so that you can watch it later or save it for the appeal or future purposes. You can only watch it online. On their site. And it's only there for 60 days from the date of the ticket. I got the ticket as the registered owner of the vehicle and I knew that what they were alleging couldn't be true. So I went to their website and I looked at the 12-second video clip and I didn't see the vehicle registered to me blow through a red light. That definitely did not happen.

 

T.F.: Let me ask you about that. You make the distinction between the “registrant” of the vehicle and the “registered owner” of the vehicle in the transcript of your initial hearing. Could you explain the distinction and why these terms are important?

 

L.K.: Well yeah. It's actually confusing because New York State registration law says that a vehicle has to be registered to the owner and they're referred to as the “registered owner.” That's a legal term under New York State law with the DMV [department of motor vehicles]. There's something called a “registered owner.” That's who the car is registered to.

 

But the city law uses the term “registrant”—it's, I forget, one uses the term “registrant” and the other uses the term “registered owner.” In the city law it says that the ticket doesn't go to the driver, or the operator of the vehicle, it goes to the registered owner. That's because the equipment doesn't have the technical ability to zero in on the driver. I don't know how they would do that. I guess face technology—there are some cities around the country that have different red light camera systems that do identify or issue the ticket to the actual driver.

But here the ticket goes to the registered owner. And in fact the law specifically says that the city cannot point the cameras at the occupants of the vehicle and it is not an element of the offense to who is driving. So they don't care who's driving and they won't allow you to raise that as a defense or an issue. All they care about is that the vehicle is registered to you, it's alleged to have rolled or violated the red light intersections some how and then they roll that 12-second—just to get to the bottom line in this hearing they roll the 12-second video tape and that's it. You're guilty. You're liable. They don't care about anything. It doesn't matter that you're not the driver. It doesn't matter that there might be a valid defense. It doesn't matter that there's a plausible explanation. It doesn't matter that it's not really a red light infraction.

Tons and tons of these red light camera tickets are for people making right turns on red and failing to stop long enough.

I've found in researching this that most of these red light camera tickets are issued really for hairline offenses—technical offenses. If you're familiar with a lot of intersections around the city, when you approach the intersection there's usually a 12-inch, white—what they call—stop bar, which is a white line painted on the road where you're supposed to stop. Then there's a good margin after that. Then there's a crosswalk. And after that there might be some additional distance to the corner and then you're into the intersection. Then you're into the middle of the intersection with the red light. Then past that, obviously you're past the intersection. So, most of these red light tickets are actually for people stopping on the white line where they're supposed to stop behind it. Or stopping on the white line then rolling forward. Tons and tons of these red light camera tickets are for people making right turns on red and failing to stop long enough.

...the city's collecting almost $4 million per year from this system and they're getting it on the pretext of public safety.

The city is basically just shooting fish in a barrel. What really bothered me about this is that the city's collecting almost $4 million per year from this system and they're getting it on the pretext of public safety. Every time it comes up, they talk about people blowing through red lights when in fact there's little or no cases of that. What it is, is that they're taking advantage of human nature that people will often make these right turns on red and don't stop long enough.

 

What really is interesting here, is that the local newspaper did an investigative report and they found some of the worst scofflaws were city employees including, in one instance, the police chief made a right on red without stopping long enough. It wasn't an emergency, he was in a city vehicle, and he got one of these red light tickets and guess what he did? He ignored it.

 

They found in the investigation that there were lots of police and city employees who got these things and would just blow them off. Apparently the city is taking disciplinary action against a lot of people because they—the city—got caught.

 

Another interesting thing about this Ted, is that a lot of these tickets have been issued to county employees in county cars. The city now has a policy that if a red light camera ticket is issued against a county vehicle they don't enforce it. They don't try to collect it. They just write it off. The reason why, in the newspaper, the city spokesman said that City Hall has decided that it's not right for city government to try to collect money from the county government. So, those tickets they just write off. The county has a policy of letting it go. They don't hold the driver responsible because the city doesn't hold them responsible. So, if it's about public safety, why doesn't it apply to city and county employees?

 

T.F.: You also made arguments about, what you call, lack of a deponent and/or that there was no sworn statement by person who reviewed the tape.

 

L.K.: That's a legal issue under evidence law. There's no witness. You know, one of the first things I noticed when the ticket came in the mail to me, again as the registered owner, is that as an attorney, I'm familiar with the vehicle and traffic law and I looked at the ticket and the wording on the ticket doesn't comply with the New York State vehicle and traffic law. It doesn't have the correct wording. It isn't sworn to by anybody and you can't tell if the person who has like a machine-made signature on it presenting the charge is a law enforcement officer. It doesn't look like they are and in any case that person doesn't come to the hearing to swear to the videotape being properly downloaded and handled and that it is an accurate representation of what they claim occurred. There is a law in regular court that the prosecution can't run a video without somebody swearing to its accuracy. Otherwise it's called hearsay. But in this case, we're not in court. So, the city can run these things without anybody proving that they're accurate. It's just so unfair that you don't get to cross-examine a law enforcement officer who handled the video or be able to test the evidence about what happened just before and after.

 

T.F.: You say that based on the disclaimer that comes with the ticket as well as based on the lack of a real time clock or, for that matter, anyone to swear to what they did with the footage or that it's even accurate, this is your argument, how can you actually believe what you see?

...it looked to me like it was sped up. It was jumpy and the frames were jittery.

L.K.: It looked to me—I got to look at it on their equipment at the hearing, and it's only 12 seconds, but it looked to me like it was sped up. It was jumpy and the frames were jittery.

 

The next problem that happened after the hearing examiner just, you know, quickly dismissed my legal arguments and found for the city was that I filed for an appeal. Again, the appeal is not in court, the appeal is in this Parking Violations Bureau which is not a—it's under the umbrella of code violations and corporation counsel's office so it's really not a professional—not to knock the city because I'm on the other side of this, but it's not a very professionally, well-run operation. It's certainly not a court and they don't observe the formalities a court would do.

...they're gonna ding your credit and you're gonna get a judgement against you if you don't pay and pay quickly.

So, again, I'm back in front of the Parking Violations Bureau over a moving violation that hit me in the pocketbook pretty good and everybody else who gets these things. By the way, if you don't pay the $50 within the short time frame, they send it out to collections. If you don't pay it then, within their tight time frame, they can issue a judgement against you. In fact, the city announced last week that they have a problem with scofflaws—a lot of people just blow these things off. The city announced last week that they're now going to start taking civil judgements against people, which means that if you get a ticket and you don't pay it, the city gets themselves a judgement and will file it with the county clerk's office and it becomes a lien on any real estate or property you have in your name and it also dinks your credit. And in some cases it can hurt your credit pretty good. There is a real penalty even though they're saying it's a civil offense. They've candy coated this and said that you don't get points on your license and it doesn't affect your insurance and all that. Well, that's to sell it to the public, maybe. But they don't tell you that they're gonna ding your credit and that you're gonna get a judgement against you if you don't pay and pay quickly.

 

Getting back to the appeal, I filed for the appeal—to go through the proper legal process—and in preparing for the appeal, I went back to the Redflex website—PhotoNotice.com to look at the video again and prepare my case. I was shocked that when I go to the website to look at the video again, it's gone! There's a message that said it's been more than 60 days and the video is no longer available.

 

T.F.: Does that mean the video is deleted and that you have no recourse now?

 

L.K.: I found out later that it's not deleted, that they really do have it, that they can keep it if they want it, because later, when we filed the lawsuit and we went to court, the video reappeared and they released it to one of the TV stations. So, they wouldn't give it to me as the defendant, but I think they were more than happy to give it to the news station because they thought it might show their—improve their case.

The whole thing is just very unfair and again I watched the video and the vehicle that is registered to me is on the stop line—it did not go through the red light.

The whole thing is just very unfair and again I watched the video and the vehicle that is registered to me is on the stop line—it did not go through the red light. The city attorney was on TV saying that [the program exists] to try to stop people from blowing through red lights, well my vehicle, in this instance, was stopped on the stop bar. It did not blow through the intersection. It didn't blow through a red light. It was a very technical, hairline infraction. In any case, the issue that tickets me as the registered owner, they don't want to know nothing. I've heard of cases that are much worse than that.

 

I've heard of cases—you know, since this made the news, people have called us with all kinds of similar but really bad experiences they've had. A guy called me the other day who said that he was stopped at a city intersection where one of these red light cameras is and in his rear view mirror he saw a trucking coming at a high speed behind him and it didn't look like this truck was going to stop. So, he did what any intelligent person would do and he went through the intersection. Fortunately, it was safe for him to do that and he drove through a red light to avoid getting hit from behind by a truck that, for some reason, was about to blow through the red light. Nothing fortunately happened. He didn't think anything more of it. About three weeks later, he got a notice in the mail that he got a red light ticket. So, he goes down there and he explains to the hearing examiner—of course this is him telling me—but he told me that he went to hearing and he explained to the hearing examiner that he saw a truck coming behind him and he was gonna get hit if he didn't do something—that was the only thing to do and the sensible thing to do because it was safe to do so. The hearing examiner dismissed his defense and said that it doesn't matter. He's the registered owner, the tape clearly shows him going through the red light and he's guilty and he has to pay the $50.

 

Here's what's wrong with that. In most states, including New York, there's something called the defense of necessity. It isn't really a law, but it's a common law idea that says the only way you could avoid an accident is to drive through a red light, then you're allowed to do so if you can do it safely. That's just common sense besides common law. New York, under the vehicle and traffic law, recognizes that defense. In fact, I guarantee you that if a police officer was on the corner and saw this, the driver would not have been issued a red light ticket. And if they were issued a red light ticket, despite common sense, once they get to a hearing—if it was in court in front of a real judge who is following the law—that ticket would be dismissed because you have a valid defense. Under the Rochester law, they don't care about anything. They roll the tape and that's it, period, you're guilty, pay the $50.

 

T.F.: One of your other arguments was that there was a lack of due process safe guards. Were you surprised by what happened with the judge's dismissal?

I mean the first thing that surprised me was that the hearing examiner didn't really know what to do.

L.K.: Oh yeah! I mean the first thing that surprised me was that the hearing examiner didn't really know what to do. He kept looking at the clerk who was kind of prompting him and the clerk is sitting next to him. Her job is supposed to be to take—is to hand him the files, to mark down what happened, and turn the video on and off. She's not supposed to be a prosecutor or conduct the hearing. I guess they don't get many people who go down there know their rights or who properly contest these things. They're used to quickly telling people you're wrong, or you're guilty and then that's it.

 

When I went in there and started to raise legal objections and procedural objections, he didn't really know what to do. So he's looking at the clerk and the clerk starts telling him all kinds of things and that I don't get a hearing and that I'm not the registered owner. I was the registrant because that's what the DMV papers say and not the registered owner so the law—the Rochester law—uses terms that are different from New York State law.

 

He's taking cues from the clerk, and the clerk pulls out a book and reads to him what he's supposed to do. And you heard the exchange there. I objected that the clerk is acting like a prosecutor and the hearing examiner is taking directions from her and he's acting like a prosecutor. It was not a fair hearing at all. The thing speaks for itself. They don't want to listen to defenses.

 

You know, to be fair to the hearing examiner, the law doesn't really let him consider defenses. He's stuck because the Rochester law is written in a way that there is no discretion or leeway for the hearing examiner to consider anything except the car's registered to you, it's on the video, and it appears to be on or over the stop bar and that's it. He's not allowed to consider that there's a good reason, or that you're not the driver, or anything else.

...they have no idea what happened because they allowed some body to use their vehicle, which is a perfectly legal thing to do.

A lot of the cases that we've heard about since filing the lawsuit are people who aren't—the least—who didn't do anything wrong—who were not the least bit guilty. Like people who lent their car to a neighbor. Or car dealers who let a customer take a car out on a test drive with dealer plates. We've heard from grandparents and Good Samaritans—people who allowed somebody to use their vehicle and the person had no idea that they got a red light camera ticket because the system is kind of a stealth system. Unless it's at night and you might see it go off, you have no clue that you just picked up a red light ticket and again this is because most of these tickets are not people blowing through a red light. I suppose if you were blowing through a red light you would know that and of course you would deserve a ticket. But most of these tickets are for people that are making a right-on-red and they didn't stop quite long enough or where they stopped on the bar. Most of them are clueless and have no idea that they just picked up a red light ticket and if it's an employer's car, the employee may not even know about it. We've heard from tons of people who got tickets when obviously they weren't in the car, they weren't the driver, and they have no idea what happened because they allowed some body to use their vehicle, which is a perfectly legal thing to do.

 

T.F.: On the face of it, you said, the statute and the law are invalid. Who writes this stuff? Is it Redflex? Or is this legislation that was passed here in Rochester? How did this come about?

 

L.K.: Oh, well, to answer your question, it was written by City Council. It was signed by the mayor and put into law on a local level. Redflex doesn't write the law, but I'm glad you mentioned them. The way this came to Rochester is this foreign corporation Redflex is an international company that manufactures, distributes these photo enforcement systems. They lobbied cities in New York State and, in fact, they got in trouble because one of their lobbyists wasn't properly registered here and they paid a fine.

It's a 100 percent local law.

But they were successful in selling this bill of goods to Rochester. They also lobbied Syracuse, NY and Syracuse turned them down flat because they had heard about a lot of problems around the country. So, there are no red light camera systems in Syracuse. It's been in Rochester about three years and it was passed into law by City Council and the wording of the law was probably put together by the city's corporation counsel and voted on and passed by City Council. It's a 100 percent local law.

The constitutional defect in it, is that they are charging the registered owner without regard to whether they're the driver or not.

The constitutional defect in it, is that they are charging the registered owner without regard to whether they're the driver or not. It seems to me that the way the law is worded it says that there is a presumption that the registered owner is liable for the offense. The legal term presumptive liability is what's in the statute and what that means in plain English is that you're automatically guilty. There are some areas of the law where that's allowed and makes sense. But not in this case because it is a fiction that every vehicle is only driven by its registered owner and punishing some body for being on the registration to a vehicle for some body else's moving violation.

You're not allowed to go in there and say wait a minute guys, I wasn't even driving.

My argument is that it is invalid on its face because the way it's written deprives you of your due process rights. You're not allowed to go in there and say wait a minute guys, I wasn't even driving. They won't allow you to say that.

 

T.F.: So this is a good segue into September 24, 2013 when you went before supreme court Justice J. Scott Odorisi. I got to court late due to supporting someone else in court that day, but I was wondering if the arguments you've been explaining to me are essentially the same arguments you brought before the judge?

 

L.K.: Yes, and additionally the judge wanted to hear about whether the red light cameras actually do any good. The reason why, is that once a statute is on the books there's a legal concept that says statutes already enacted into law are presumed to be valid unless you can show a good reason why they're not. The city was saying that this was all about public safety but we were saying no, it's about public revenue and finance. The judge asked, “Well, do the cameras really work?” Does it have a public safety effect because that might lead to the law standing up and accomplishing what the city said it's mostly supposed to do.

 

So my attorney got into some of the statistics [for instance, regression to mean effect] and our argument was in fact the city cannot point to any statistical study locally or nationally that shows red light cameras increase safety. In fact, there's no studies locally that the city did except that there was a report from Redflex about where the cameras should go. [There have been reports from other cities about the increases in accidents because of red light cameras: Los Angeles, Washington, D.C., Portland, Fort Collins, Oceanside, Philadelphia, Corpus Christi, & Winnipeg.] But of course they have an incentive to put them in areas where they're gonna maximize the number of tickets written. So there is no study in Rochester—and by the way let's not forget these cameras are only in the city not in any of the towns or suburbs. So if it's really about public safety, there's a lot more traffic in Pittsford and Greece and all the towns and suburbs then there are in the city neighborhoods. Yet, it's only in the city though. That right there is suspect.

The argument in court was that there are reliable studies that show that red light cameras actually increase the danger at intersections because it makes people gun-shy and have the tendency to step on the brakes when they're in that dilemma zone.

The argument in court was that there are reliable studies that show that red light cameras actually increase the danger at intersections because it makes people gun-shy and have the tendency to step on the brakes when they're in that dilemma zone. When the light is about to turn yellow, and you don't think you have enough time, you could go, but you don't want to get a $50 red light ticket; it's increased rear-end collisions.

...there's evidence that just the presence of these red light camera systems at intersections creates danger because people are trying to find where the cameras are in the sky and are looking around.

We've also seen that there's evidence that just the presence of these red light camera systems at intersections creates danger because people are trying to find where the cameras are in the sky and are looking around. In that two or three seconds that the driver is looking around to see where the red light camera is, distracts them from the traffic conditions on the road in front of them. So just the presence is distracting and, in fact, it actually increases rear-end collisions according to a lot of experts.

 

T.F.: You raised some interesting points. I remember reading that Monroe County didn't want any red light cameras on any of their poles, and you mentioned before, but do you think the camera systems themselves are inherently racist and classist based on the location of cameras and people who were ticketed?

 

L.K.: Yes, that's a great question. First, I have to tell you that that's not one of the issues in the lawsuit because there were so many due process violations and so many obvious constitutional flaws that that was plenty to work with. The lawsuit is just a straight up and down challenge to the law based upon the violation of due process that they're charging the registered owner instead of the driver and they're not giving you a fair hearing. So the racial aspect is not in the lawsuit and not an issue before the court.

It's not with the camera system and not with the law, it's with the implementation and location of these cameras.

But, I'll tell you that my own opinion is that that's another problem with these cameras and I've heard the chief of police in Rochester say well the cameras are neutral; they don't have any bias about race or gender or anything else like that. And I've gotta tell you that I respectfully disagree that there's no racial bias here. It's not with the camera system and not with the law, it's with the implementation and location of these cameras.

There's 32 around the city. The Rochester law allows them to put in up to 50—so there's 18 more coming. The way the city has done this is that they've located these cameras supposed where there's the most red light infractions. But in reality they've placed these cameras mostly in African American neighborhoods, minority neighborhoods, and low-income neighborhoods. There's one or two that fall outside of that, but most of them are predominantly in very urban and minority neighborhoods. So, even though the cameras don't have a bias, and the law doesn't have any racial aspect to it, in fact they do have a disproportionate effect on the African American and minority community because those are the neighborhoods being targeted by this.

Again, this is not an issue in the lawsuit, but the law recognizes a concept called disparate impact, which means that if the otherwise neutral law is implemented in such a way that it has a disproportionate and adverse effect on one minority group, then that law is suspect. It may be unconstitutional. I would argue that the city has purposely, together with Redflex advising them, has purposely put most of these cameras in low-income and minority neighborhoods because they figured out that those are the areas where people may not be able to fight city hall. These are people who may not be able to take a day off from work, who may not know to go down and to exercise their legal rights. But they probably have $50. So the city has found the sweet spot and has purposely located these cameras in such a way that there's a disparate impact and it is i think racially—there is a built in bias in the way they've located the cameras.

 

T.F.: What is the status of your ticket now as Justice Odorisi considers your arguments?

...it's on hold and it's pending the disposition of a lawsuit.

L.K.: The status of it is that it's on hold and it's pending the disposition of a lawsuit. That's a great question and I'm glad you asked me. Here's what happened. In my case, and I'm an attorney and I know my legal rights and I'm represented by a trial attorney who has been advocating for me in court.

 

Listen to what the city did earlier in the case. This really doesn't inspire confidence in their system. After I went to the first hearing and was quickly found liable, and I filed my appeal, that should have put everything on hold. In addition to that we file a lawsuit. Once the lawsuit was filed, the city attorney got involved. They contacted my attorney and everything was supposed to be heard in court. The city then asked for an extension and wanted more time to prepare their response, which is common, and my attorney agreed to it. So that put us past another so many days. In the meantime, the city attorney notified the Parking Violations Bureau that this ticket is the subject of a lawsuit and keep it on hold. So we weren't worrying about it.

About two weeks after that, I got a notice in the mail, that said the city now has a judgement against me and I have seven days to pay or it's going to go to collections.

About two weeks after that, I got a notice in the mail, that said the city now has a judgement against me and I have seven days to pay or it's going to go to collections. I received a notice the next day—apparently the collections department doesn't talk to the legal department. After I got a notice of the judgement against me, the ticket that was supposed to be on hold and was the subject of a lawsuit, an outside collection agency sent me a notice saying I had so many days to pay them or they're going to file it in my credit history and take further action.

So I have no confidence in the Parking Violations Bureau to run a fair and square operation.

So of course I called my attorney and he called the city attorney and the city attorney said that he was sorry, and apologized, and that it must have slipped through. They called the credit bureau and the collection people and told them to send it back. But can you believe that? I have a lawsuit against the city over the ticket and they send it to collections anyway and they get a judgement against me anyways knowing that this is in court. So I have no confidence in the Parking Violations Bureau to run a fair and square operation.

 

T.F.: Has this affected any other tickets?

Everybody who has an open case would be affected by the outcome of this decision.

L.K.: Yes. I can give you the legal answer to that. It's an easy one. Everybody who has an open case would be affected by the outcome of this decision. Everybody who has a ticket that has already been paid and their case is closed, would not be affected by this. And of course, if the court upholds the Fifth Amendment and strikes down the Rochester law, then of course the city won't be able to enforce this red light camera law anymore. And not be allowed to issue anymore tickets like this.

 

T.F.: There were cameras in Rochester that were speeding up the yellow light sequence and ticketing more drivers. Could you comment on that? Was it intentional? Was it a technical thing?

 

L.K.: That wasn't the issue in my lawsuit. That has occurred in Rochester and in other cities. The case in Rochester was that a gentleman received a red light ticket for an alleged infraction by his wife. He got the ticket as the registered owner. This gentleman was a more educated consumer—this was in the local news—and he went out to the intersection because he was so angry about the way the city had handled this. He sat there and timed the light. He did this over several days and he discovered that the yellow light was shorter than any other yellow light. He contacted New York State and he found out that that intersection was improperly calibrated and the yellow light was too short.

 

Of course, it was one of the city intersections where the camera system was set up—it made the news—and the city's response was, Well we don't even control that, it's controlled by the county, we didn't set it up that way on purpose and it's an honest mistake. Anybody who got a ticket like that can challenge it.

So, even after everything came down on them for that intersection being improperly timed, the city still didn't automatically dismiss those tickets.

So, even after everything came down on them for that intersection being improperly timed, the city still didn't automatically dismiss those tickets. What they did—there's tons and tons of them, it's a huge amount of money—so what the city did was that they posted on their website that if you have a ticket from that particular intersection, you're allowed to have a hearing even if you paid it—I think—you're allowed to have a hearing and they'll reconsider your case. Isn't that unbelievable? The city gets caught with the yellow light being timed in their favor and improperly and they don't just automatically return that money, instead they say, well you can take a day off from work and you can come down and have a hearing.

 

T.F.: I want to go on a slight tangent here. This involves the blue light cameras that are manned by the Rochester Police Department. Can a similar challenge be mounted against the blue light cameras as you're mounting against the red light camera program?

That's completely different from the red light camera system because the blue light cameras are not a profit generating concession. The red light cameras are.

L.K.: I think that's a worthy topic of inquiry as well, but it's a whole different realm because in that case, the blue light cameras are actually run by a police department and they're not just automatically generating criminal charges. They're using it more for surveillance and intelligence purposes. I'm not sure if that's good policy or good policing either. Although, there may be some valid police science reasons or not. I don't know, I'm not an expert on the blue light cameras. That's completely different from the red light camera system because the blue light cameras are not a profit generating concession. The red light cameras are.

 

T.F.: People I know, and myself at times, have said that we live in a police state. How do you feel about that term and is it applicable in this situation?

...don't come in through the back door and really put this tax on the poor or put a hidden tax on drivers and do it under the pretext of public safety.

L.K.: Well, you know, it is to some extent. The phrase that comes to mind is Big Brother because the city has basically turned over 32 intersections to a private corporation and told them you know, go at it. They put Big Brother on 32 corners and even worse than that, they've subcontracted it out to a foreign corporation that's building this huge database with all kinds of surveillance going on at those corners. No, we don't live in a complete police state but putting Big Brother on critical corners and especially in residential neighborhoods in some cases is getting us on that slippery slope. It's just bad law, public policy, and it's a really a hidden tax. It's definitely bad tax policy. You know, the city should just be honest. If they need to raise money, then they need to go to City Council or go to the voters and put up a straight up or down tax increase. But don't come in through the back door and really put this tax on the poor or put a hidden tax on drivers and do it under the pretext of public safety. That's a Big Brother approach and it's leading us into a police state. Bottom line is, if you're a law abiding citizen just minding your own business, the city should not be watching you on every corner.

 

T.F.: What can people do to fight back?

If you have a ticket from a red light camera right now that's open, stay tuned because the court is expected to issue a written decision by around November 8 and if the court—I'm being cautiously optimistic—finds that there is a due process problem and strikes down the law then that would affect everybody who has an open ticket.

L.K.: Well, that's a great question. If you have a ticket from a red light camera right now that's open, stay tuned because the court is expected to issue a written decision by around November 8 and if the court—I'm being cautiously optimistic—finds that there is a due process problem and strikes down the law then that would affect everybody who has an open ticket. If you have a closed case, then that's unfortunate, but the lawsuit won't affect those.

I don't think people should have to give up their constitutional rights to live in the city or when you drive into the city or anything else, be an educated consumer. Don't get mad, don't take the law into your own hands, but go to court.

In general, people ought to be educated consumers and—you know I'm fortunate as an attorney because I'm familiar with the law and if I'm not I can go look it up. But people also need to be their own attorney—be their own advocate—and look up the law. It's all available, it's out there in the city code, it's online and there is a great local law library in the appellate division building on East Avenue downtown. Go find out what your rights are, hire an attorney or be your own attorney and don't let city law violate your privacy or your constitutional rights. I don't think people should have to give up their constitutional rights to live in the city or when you drive into the city or anything else, be an educated consumer. Don't get mad, don't take the law into your own hands, but go to court. That's what I did and I'm confident that the court is going to find the local law fails to meet constitutional standards.

 

T.F.: Tell me about your glasses...

 

L.K.: Thanks Ted. You know we like to have a little fun and I like to have some fun with fashion sometimes. So, you know we're real serious about law, but I like to have a little fun too, so that's what the frames are about.

 

T.F.: They're great, thanks for your time today!

 

L.K.: You're welcome!

 

Additional Information: Krieger's transcript of his initial hearing regarding his red light ticket | 2009 City Council legislation for the red light traffic enforcement program | Red-light Camera Contract between City of Rochester and Redflex | Civil suit against alleged unconstitutional red light cameras in Rochester, NY | Memorandum of Law in Krieger's case | Justice Odorisi denies City's request to dismiss Krieger's case | Monroe County Traffic Safety Data | City of Rochester Charter and Code

On the hottest of hot dog days in August, the Flying Squirrel Community Space on Clarissa Street hosted a planting party. Two dozen volunteers showed up, including University of Rochester students, Lots of Food Project Guild members and energetic neighbors. Pickaxes were swung and spades wielded. Compacted ground was broken. Log edgers were laid. Gallons of compost were sprinkled into newly formed garden beds. Paw paw trees (yes, the same tree mentioned in the childrens’ song is native to this area), strawberries, asparagus and herbs were planted. Thirty cubic feet (two truckloads) of woodchip mulch were spread.

In collaboration with Rochester based Lots of Food Project (LOF), the Squirrel‘s yard is undergoing transformation. LOF, a not-for-profit program of Seeking Common Ground, Inc., is dedicated to making the food in its edible landscapes freely accessible and available to all.

With the help of over 100 local volunteers led by permaculture enthusiast, designer, and teacher Patty Love of Brighton, LOF has already converted almost a dozen underutilized plots of land throughout the city into sustainable, self-maintaining gardens. LOF gardens will provide healthy alternatives to fast food restaurants and small overpriced convenience stores downtown, many of which don’t even stock fresh produce. All food will be free, with fair share harvest for neighbors. LOF hopes to gradually replace the city’s food deserts with new ways of thinking about and acquiring food.

The garden plan for the Squirrel site evolved after considering community needs vocalized at the LOF presentation made by Patty Love to the Squirrel at the Squirrel Board meeting in June, and after an informational neighborhood charette was held by LOF Guild members, Mary Lupien and Winzell Beckett, in July.

Although edible food forests take about three years to come to fruition, next summer, there should already be ample quantities of fresh food available at the Squirrel for harvest including strawberries, rhubarb, sorrel, collards, swiss chard, spinach, sea kale mustard greens, horseradish, daylillies, rosemary, thyme, oregano, chives, herbs for tea, and medicine. Informational flyers will be available describing the plants, what the fruits look like, when to harvest them, and how to use the various plants. LOF hopes that folks will be inspired to leave feedback and recipes for others after trying some of the foods. Eventually, the four young fruit trees at the Squirrel will provide shade and bear fruit.

Further plans for the site include benches made of tree trunks to be installed around the center herb circle. A Little Free Library will be installed this fall, having available food and garden books for all ages.

The LOF Project has the potential to grow something much larger than a food system, as volunteers join in co-creative participation with each other and Mother Earth to feed ourselves both physically and spiritually. Not only will LOF grow and share healthy, local, ecologically grown food, but its volunteers will also share and develop personal knowledge and skills as community bonds are built.

If you have questions or concerns about the gardens, Winzell Beckett is designated LOF lot steward for the Squirrel garden site. Winzell can be reached at 329-3128. If you have questions, concerns, or comments, please attend a general meeting of the Flying Squirrel on either the 2nd or 4th Monday of the month. An email can also be sent to FlyingSquirrel@rocus.org or call us at: 585-678-6870. Ricardo Adams, Squirrel neighbor, frequently checks on the the garden, and he also can answer questions.

For more info and updates on LOF projects, go to lotsoffood.org. There you will be able to view a calendar of LOF events, a map of all the LOF sites in Rochester, find a volunteer application, see photos, or learn how you can be involved in helping create  a resilient local food economy as we jointly regenerate and revitalize the land we steward.