ORAL ARGUMENTS MN Court of Appeals

23 July 2008
Judge Terry Stoneburner, Judge Renee L. Worke, Judge Stephen L. Muehlberg

Arguments were heard and questions posed to both Appellant and Respondent. Please note that the following is from rough and quickly taken notes, is not complete, may not be exactly accurate, and most comments are paraphrased, not quoted. In the interests of accuracy and fairness, suggestions for additions or corrections from any persons who were present are welcome.

APPELLANT
The key issue is liberty in this country, and the validity of Terry (stop) principles being applied to safeguard citizens from unjustified governmental interference. At issue is the lawfulness of the police orders, not the suppression of any defendant conduct (referencing the Berg line of cases). The state shouldn't exploit the illegality of an officer's behavior. In Berg, we don't want citizens assaulting an officer or engaging in violent behaviors. Yet a citizen can (legally) resist, without being assaultive. (Justice question: 'Can one just drive away?') 'Defendant was never charged with fleeing, never charged with assault of an officer, he was acquitted of every other offense.'
Later orders were tainted by the illegality of the first order. Police acted wrongly in that what they did, didn't fit into any of the (3) allowed types of stop. What happened is not a traffic control function because that typically applies to a large group, not singling out an individual. Specially singling out one person (at the whim of an officer) would be absolutely illegitimate. Legality of an order is determined by the court, not the jury. (Justice: the Jury does determine credibility- whether (the officers) were really concerned for his safety). Bicyclist had as much right to be there on the road (as any other drivers). Justice: "Are you saying he was targeted?" (It's likely) that the police at first believed his actions were illegal, later realized otherwise and then brought in the question of the safety concern (as rationale for the stop). Justice: "So there was no disobeyed order?" (he was only seeking) freedom from unwanted and unwarranted police action. Justice: "does he have the right to subject others to a danger?" The legislature must make the determination of danger. Defendant was not doing anything determined by the legislature to be dangerous. Justice: (re Prouse v Delaware) 'What remedy does a person have? Does each person have the right to (just leave)?' he wasn't charged with fleeing- the state had that opportunity.

RESPONDENT
Urges the Appellate court to affirm the District court's decision to deny defendant's Motion to Dismiss based on lack of probable cause. There are (3) clear instances of appellate not following an order. Justice: "Which order was he convicted on?" "We don't know." Justice: "What is the remedy (for a person wronged with an illegal stop)? 'I submit that there are civil remedies, administrative actions- what isn't acceptable is to raise the question on the spot' Justice: "He did stop, he did take his bicycle to the median- what did he disobey?" 'I submit that (having to) tell someone three times is sufficient (to show that he didn't obey). 2nd, he was asked to walk bike up NW Drive, 3rd he gets on his bike and goes the wrong way on a one way road- defendant did not obey traffic order. Berg is applicable- we don't resolve disputes by an argument at the time of arrest. Safety and order (are gained by) Berg, Ingram. Court has seen fit that a person must be compliant, even in an illegal arrest- you cannot resist on the spot.
Justice: "are these direct orders, or just suggestions?" 'was there permissible language?'
[Stephan's note from the court transcript p42: officer Wingate's testimony 'I politely *asked* the defendant four times to take his bicycle across the curb and ride it on NW Drive']
Justice: "They were mistaken about it being illegal to cycle there?" They (at first) thought that (it was illegal), and they were wrong. (the road was busy, they were on a call, they were concerned for his safety.) The order to stop riding the bike- the first order was not a seizure- they did not stop the appellate. The first order is not covered by probable cause arguments. In Mangan [Stephan's note: Anoka parade case, candidate who repeatedly steps off sidewalk onto parade route to distribute literature] the conviction was upheld. That was for a single person (in a crowd control situation). It is juvenile to suggest that the result (of allowing such police action) would create a kind of police state- it is only about traffic orders. If probable cause is always required, it is far too high of a bar (to expect of the police). RE: lenity and inconsistent verdicts, only legal inconsistency matters, not that which is just logically inconsistent.

REBUTTAL
Returning to first point made by respondent, whether an order was given- absolutely- the state contends that even though an order was given there was no seizure (Stave v Harris 1999 'a seizure has occurred') This first order and subsequent stop becomes the basis of the fourth amendment issue. RE": Mangan and crowd control, 'it's true that only one person stepped off the sidewalk- but nobody was allowed to go off the sidewalk (onto the parade route), so it was not unfair singling out of one person. As to the appellate, he had as much right as any motorist to be on the road. Final point- re: emergency requirement- there was no emergency. Such action is only justified if there is a reasonable belief that a real emergency situation exists. There was just a mere possibility of such, no different than (other daily accepted situations of risk.) There was no grave danger.

case submitted.

APPEAL scheduled for Wednesday July 23 2008, 11:35am

The Minnesota Court of Appeals has now scheduled oral arguments on the single remaining count. If the court is ahead of schedule for the day, arguments could begin as early as 11am. The Court of Appeals gallery is open to the public, and located at 25 Rev Dr Martin Luther King Blvd, St Paul, MN.
Directions:
http://www.mncourts.gov/?page=CourtHouseProfile&ID=40090

The arguments will specifically address the important question if a law-abiding bicyclist can be legally singled out, stopped and assaulted by the police, without reasonable suspicion or probable cause. The state case includes arguments with astonishing Civil Rights implications. Please come and support this cause!

APPEAL UPDATE

Briefs from my attorney and a second party brief were served ahead of time. The prosecution brief was due on Dec 31st, but they petitioned the court for an extension to further prepare their case.
I am happy to share that the amicus brief was supported by a number of generous individuals through BIKEAMICI.ORG, and with substantial support by the International Bicycle Fund, League of American Bicyclists, and the Minneapolis Bicycle Messenger Association. Thank you to all- this cause is for the civil rights of us all.
(for newcomers, you can scroll down to 'older posts' for the full story)

40 year-old construction worker dies after Taser is deployed at Vancouver Airport

Search 'taser vancouver' for news on yet another recent unnecessary death resulting from the use of this weapon. New York Times story is here:
http://www.nytimes.com/2007/11/16/world/americas/16canada.html?ex=1352869200&en=867c05329446b6b9&ei=5088&partner=rssnyt&emc=rss

BIKEAMICI.ORG

I would like to help people know of a great new organization BIKEAMICI.ORG, begun as a result of this case but completely separate from me, and with the intention of carrying on well beyond it. Their first project is to help fund the writing of an independent brief for the appellate court supporting cycling civil rights, on behalf of cyclists coast to coast and beyond. They will also possibly contribute toward the costs of the district court transcript (estimated at $1400-$1600) due to be complete this month. I fully appreciate their efforts, and hope a lot of individuals and bike organizations in particular can come on board in support, whatever the contribution amount. The breadth of support is the really important thing. Please have a look, and thanks!

http://www.bikeamici.org

POLICE HARASSMENT documented by Missouri driver Brett Darrow

This case is similar for the aggressive manner of the officer, the sense of entitlement to harass, the domineering and arbitrary power, lack of probable cause, and the intent and willingness to concoct completely false charges. Fortunately for the driver, a previous abuse of his civil rights led him to install a continuously running video camera in his car. You can read the dialog and view the video here:

http://www.thenewspaper.com/news/19/1961.asp

MORE GOOD NEWS!!

Thanks to concerned individuals, a public benefit to raise general awareness is now in the works for September. Also, a new organization is in the process of being created by others, to support the work of this cause and to serve as the basis for future good works. More to come on that.

And MORE good news- James Oberstar, chair of the House of Representatives transportation committee and Member of Congress from MN 8th district has written to say that he has watched this case "with great interest", that language has now been added to the FAA reauthorization "which will make bike lanes and bike facilities eligible for funding out of the Airport Improvement Program (AIP)" and that the MSP airport, previously uninterested in applying for a grant out of 25 million in available funds for *mode shift* (i.e., getting people out of their cars and on bicycles or walking), has now changed their policy:

"Today that has changed and I have received assurances that the airport will apply for a grant and will pursue strategies to make the MSP bike accessible and bike friendly.

"I regret that you had to undergo this experience to see such good results. I trust that we can work together to make Minneapolis and Minnesota a better place to commute and travel by bicycle.

"If you would like to receive periodic e-mail updates on issues before Congress, please visit my Web site, www.house.gov/oberstar, and go to "subscribe."

With best wishes.
Sincerely,

James L. Oberstar, M.C."

A very positive outcome and true cause for celebration!
Cheers, Stephan