People v. Diina

Jim Ostrowski has posted the full text of the brief he wrote challenging the Constitutionality of New York’s handsfree law. It’s set to go before Erie County Court on May 10th. This arises out of Tracy Diina’s ticket in Kenmore for talking on her phone without using a handsfree device.

The issues presented:

1. Does the New York Cell Phone Law violate the dormant commerce clause?
2. Does the Statute infringe on freedom of speech?
3. Does the Statute violate equal protection of the laws?
4. Does the Statute violate substantive due process?

The commerce clause permits congress to enact laws promoting interstate commerce. The “dormant” commerce clause forbids states from enacting laws that inhibit interstate commerce. Ostrowski says that the handsfree law inhibits interstate commerce because, e.g.:

Cell phones not only are instrumentalities of interstate commerce, but also directly facilitate thousands of acts of interstate commerce. A prime example would be calling ahead to make a hotel reservation in another state. Also, for any service providers based outside New York, each call is itself an act of interstate commerce.

The court must weigh the burden on interstate commerce against the state interest being promoted.

The handsfree law doesn’t prohibit the making of those calls. It just asks you to use the earpiece that came with your phone, or to pull over to make your call. So, I’d say that there is, at worst, a de minimis impact on interstate commerce that is outweighed by the state interest that drivers pay attention to the road and not have one hand occupied holding a phone to one’s ear.

Secondly, Ostrowski argues that the cellphone law is violative of the 1st amendment.

A state may enforce regulations of the time, place, and manner of expression which are content-neutral, narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication. United States Postal Service v. Council of Greenburgh Civic Assns., 453 U.S. 114, 132 (1981).

He says it’s not content-neutral because a motorist is permitted to make a 911 call from a cell phone without using a handsfree device. Furthermore, emergency services are allowed to use a cell phone at their ear while on the job, and CB radio users don’t have to use a handsfree device.

Since this statute allows certain types of communication and prohibits all others, the state must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. Carey v. Brown, 447 U.S. 455, 461 (1980).

But where does this statute prohibit speech or expression?. Instead, it prohibits conduct; the act of putting a phone to your ear to make a call. Because of that, there’s no 1st Amendment issue, and you don’t get into any scrutiny, much less strict scrutiny.

The equal protection argument also doesn’t fly. By Ostrowski’s logic, you could argue that urban New York motorists are denied equal protection of the law because the speed limits on urban interstates is only 55, while on rural interstates it’s 65. But there really isn’t an argument. It’s more of a rant. It is completely devoid of a citation to one case that would permit the finding that New York’s handsfree law is violative of Equal Protection clause.

He says it’s a stupid law because it doesn’t prohibit you from putting a phone to your ear if you’re not making a call. He says it’s a step toward the big brother totalitarianism. He says it’s silly to punish people who aren’t otherwise violating a V&TL rule of the road. He says it’s dopey for cops to have to watch for people using cell phones instead of different violations or crimes, he says pulling someone over is dangerous, he says that the “ten” minutes it takes the cop to write up the ticket is time spent away from other police business.

This is called overstating the case:

The point is clear: there is no rational stopping point to such burlesque extensions of the police power argument once the initial premises are accepted. Rather, courts should be skeptical of such arguments when they lead to interference with the ordinary behavior of citizens going about their business and harming no one. There is no better time than the present, and no better case than this one to put a halt to such legislative tyranny. “If not now, when?”

He also argues that the fact that CB radio use, e.g., isn’t banned violates the Equal Protection Clause:

“The purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the state’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.” Sunday Lake Iron Co. v. Township of Wakefield, 247 U.S. 350 (1918).

But you could hardly call the handsfree law “discrimination”, much less “intentional” or “arbitrary”. Back when the handsfree law was enacted in 2001, surfing the web on one’s palm pilot wasn’t quite as ubiquitous as people chatting on cell phones. The same goes for text messaging. Maybe the statute ought to be amended to prohibit those activities, as well. But it’d be pretty much impossible for a cop to actually witness either; a prerequisite to issuing a simplified information alleging a V&TL violation.

Furthermore, the Equal Protection Clause was written after the Civil War primarily to ensure that Black citizens would not be subject to different laws than White citizens. It’s since been expanded in scope to prevent laws from being passed that touch upon several protected classes of people, but the scrutiny the court gives will be assessed in varying degrees of strictness:

Strict scrutiny (if the law categorizes on the basis of race): the law is unconstitutional unless it is “narrowly tailored” to serve a “compelling” government interest. In addition, there cannot be a “less restrictive” alternative available to achieve that compelling interest.

Intermediate scrutiny (if the law categorizes on the basis of sex): the law is unconstitutional unless it is “substantially related” to an “important” government interest. Note that in past decisions “sex” generally has meant gender.

Rational-basis test (if the law categorizes on some other basis): the law is constitutional so long as it is “reasonably related” to a “legitimate” government interest.

Ostrowski would include “States in which policy decisions are made by three men in a room” in the “strict scrutiny” standard. He also says:

While the state may seek to legislate for the purpose of public safety, it may not legislate for the sole purpose of pleasing large and powerful special interests.

K. I’ll bite. What powerful special interest benefits from the handsfree law?

Finally, I don’t see talking on a cellphone as being one of those fundamental privacy rights contemplated by substantive due process.

I’m intrigued by it all because it’s so light on the law, but heavy on the rhetoric. Let’s just say it’s a good thing I’m not Judge D’Amico.