Test a warning in court?

[CdwJava]

The first amendment of the Bill of Rights says the people have "the right to petition the government for a redress of grievances." What branch of governmenet or petition is excluded from this? It defies common sense that a person must risk violating a criminal law, or any law, before getting a decision about how the law might apply to a situation where there might be reasonable differences of opinion.

You can petition your legislator to change the law to make it more clear. Alternatively, you can ask for an opinion of the prosecutor or the Attorney General. They may not render an opinion, but they might.

For instance, there might be a difference of opinion between two parties about the terms of written agreements involving rights to use real property. One of the parties threatens a criminal trespass complaint if the other party uses the disputed property. The prosecuting attorney is asked if he would enforce such a complaint. He answers that he "might" do that.

Smart prosecutor. Since most cases require an evaluation of all the relevant facts, it is difficult to render an opinion about a specific case without all the details. For instance, if the property was not properly posted, he might not file trespassing charges. If, however, you entered that same property after having been told to remain off (thus clearly knowing you had no right to be there) he just might file. The same situation, but different fact sets.

The practical effect of this 'warning' is the same as a judge's decision on the merits. Are you saying law enforcement authorities can use their discretion this way and there is recourse, no appeal?

You can talk to the officer's supervisors, you can ask for an opinion of the DA, you can even push the issue and see if the officer follows through with an arrest. It is up to you.

 

[Trickster]

a declaratory judgment in a criminal case? Can you provide something to support that not only would the Federal Declaratory Judgment Act would apply to criminal law but along with that, applicable to state criminal law.

I cannot seem to find anything that would place a state criminal law under the purview of the Act.

Individuals may seek a declaratory judgment after a legal controversy has arisen but before any damages have occurred or any laws have been violated. Clearly, the person that started this thread states he was issued a warning in lieu of a citation. I understand what you mean insofar as a declaratory judgment is predominantly used in civil proceedings. However, if the officer is a "city" officer then virtually all actions of a violation of a city ordinance which may appear criminal is actually civil in nature as cities do not have what can be called "real courts" and are not considered a court of record. In a city court you have no right to a jury trial, no right to bound any "criminal" offense to a grand jury and in most cases the city judge has only the power to punish a violator with a civil penalty., Therefore, in that context a declaratory judgment would in part be based upon a criminal charge that is penalized in a civil way where in such city court criminal rules do not apply. Also, a declaratory judgment differs from other judicial rulings in that it does not require that any action be taken. Instead, the judge, after analyzing the controversy, simply issues an opinion declaring the rights of each of the parties involved. In this case, the accused was issued a warning for a violation of a law where he thinks the officer "got it wrong" and even a warning for the infraction was unreasonable. Given that a declaratory judgment may be granted in justiciable controversies it would appear that a warning instead of a citation could meet the test and a court render a judgment that the warning was one of error as applied to a criminal offense that does not exist. It would seem that if a judge held in a declaratory judgment that the officer could not lawfully issue a citation for a criminal offense because the officer was mistaken that the actions of an alleged violator was not criminal at all. It appears that the controversy concerning a challenge of a law, or constitionality of a law would be proper in a declaratory judgment without having to wait until a citation being issued, then dismissed, then the aggrieved party filing suit against the officer for damages. To me it just makes sense that a person seek the wisdom of the court "before" being subjected to a criminal citation or even an arrest for a criminal law that seemingly in the mind of the poster does not exist. Then again I have been wrong before...

 

[BOR]

However, if the officer is a "city" officer then virtually all actions of a violation of a city ordinance which may appear criminal is actually civil in nature as cities do not have what can be called "real courts" and are not considered a court of record.

So, some states have DEcriminalized traffic offenses, that is not relative to the discussion.

In a city court you have no right to a jury trial

Huh? You of course are quoting your state specifically. If you are quoting all states, you are wrong.

Yes, the US SC has ruled there is no right of trial by a charge only punishable by a money fine.

I will quote Ohio as an example, state law has most traffic violations as Minor Misdemeanors, no jail time, and no jury trial.

However, a city can enact it's traffic laws as above MM's, M-4's up to M'1.

Any charge in Ohio, state or city law, M-4 or above, is triable by jury, traffic charge or not.

no right to bound any "criminal" offense to a grand jury and in most cases the city judge has only the power to punish a violator with a civil penalty.

Again, state specific. Ohio does not usually prosecute Misdemeanors by GJ Indictment, unless with a felony charge.

To me it just makes sense that a person seek the wisdom of the court "before" being subjected to a criminal citation or even an arrest for a criminal law that seemingly in the mind of the poster does not exist. Then again I have been wrong before...

Only in rare cases does the federal constitution require a "Notice" of rights, as one is "presumed to know the law".

The SC, yes, has ruled a person should not be held liable to a charge if the conduct described that's not to be violated is of such a nature a person of "ordinary intelligence" can not understand what he is violating.

Since even courts disagree, many times, there is no such thing as a DJ for defining a criminal act.

An example is if a person sues you and the complaint is so facially confusing, you have no idea what you are being sued for, you can file a Motion for a "Definite statement".

 

[theland]

To me it just makes sense that a person seek the wisdom of the court "before" being subjected to a criminal citation or even an arrest for a criminal law that seemingly in the mind of the poster does not exist.

Thank you, that makes sense to me too.

 

[justalayman]

for a criminal law that seemingly in the mind of the poster does not exist. Then again I have been wrong before...

but a DJ is not used where there is no valid argument as well the determination is applicable to the situation at hand. In other words, the specifics of the case can be determined and used and the decision is based upon that. In the case of this unspecified warning, there is no action pending that is affected and since each case is judged on it's own merits, it is not proper to seek a DJ in this case, which the outcome of is meaningless in the rest of the world, because, quite simply put: it doesn't make any difference to anybody anywhere, including the parties involved.

 

[CdwJava]

You can always catch a judge at a co cktail party and ask his opinion on a hypothetical, but actual court cases are based upon the facts brought before a court in a legal action. No litigation means that no court is going to hear the issue.

So, you can ask for opinions of the prosecutor, the officer's supervisor, the Chief of Police, the city attorney, and even a local judge, but until the matter gets before a court in some form of litigation, no binding legal opinion is going to happen.

If this means a lot to you to do what you think you have a right to do, then start asking questions of the agency supervisors and the prosecutor. Maybe the officer is wrong ... maybe he's not. You may find some divided opinions. On the other hand, you may find that when YOU offer YOUR rendition, the opinion is that your okay, but when the officer renders his account, those opinions may change ... hence the reason that a court evaluates an incident based upon the individual fact set.

 

[wrongsometimes]

You can file a case before you get arrested but only in federal court dealing with federal issues. ie you are a felon & believe that restrictions on you owning a gun are unconstitutional; then the felon does not have to own a gun before filing a case.

 

[theland]

You can file a case before you get arrested but only in federal court dealing with federal issues. ie you are a felon & believe that restrictions on you owning a gun are unconstitutional; then the felon does not have to own a gun before filing a case.

My pereception is judges have a lot of power and discretion to hear or not hear disputes and they need that discretion to be effective. My impression is their ONLY 'boss', is an appeals court who might overturn a decision or action they disagree with. In the particular situation I raise I would expect the judge has the discretion to hear the matter or not, and if he decides to do that and give his opinion that doesn't tie anybody's hands, simply gives some guidance about what might happen if the identical circumstances were brought to the court by the prosecutor instead of by me.