How I celebrated Constitution Day (and almost got arrested)
By Jon Roland

On September 17, 2004, I celebrated Constitution Day in Austin, Texas, the way I often have in years past. I stood on the side of a roadway and held up a sign to traffic:

HONK!
IF YOU LOVE THE
CONSTITUTION
COMPLETED SEP. 17, 1787
http://www.constitution.org

In past years I have picked such locations as near the Federal Courthouse or State Capitol. This year I decided to pick another location, on the overpass of Far West Avenue over the Mo-Pac expressway (Loop 1) facing southbound traffic on the expressway. As in previous years, I got a lot of honks and cheerful waves from motorists and their passengers.

I had been doing this for about an hour when first one, then a second, police vehicle showed up and parked beside where I was celebrating. They expressed the position that what I was doing was illegal, so I asked them to provide the statute that made it so.

While I conducted a mini-seminar on the Constitution with one officer (during which I pointed out that to be constitutional, an arrest warrant had to be physically presented to the subject, not just its existence verified over the radio, a point he seemed unfamiliar with), the second tried to find the provision in the printed Vehicle Code he carried with him. (I had asked for the statute, not the code, and said that since he was in communication with his headquarters, he should be able to get that, but it let it go for the moment.)

In the meantime I continued to hold up the sign, and kept getting honks.

After about half an hour, he came up with a section of Vehicle Code provisions that declared it illegal to "maintain" a sign on "state property". To that I raised the points that: (1) The word "maintain" in that context was intended by the legislature to mean "affix to the land or structures", not hold in the hands of an individual (or wear on a sweat shirt, or affix to a vehicle). (2) There was a question whether this was being done on "state property" for the purposes of enforcement: the state might "maintain" the highway and overpass, but that did not necessarily mean they "owned" it. The highway might be an easement, without air rights to the overpass, or the city or county might own the land, or the street and sidewalk, even if they might not "own" the bridge that supported it. They were unsure, so I asked them to call a supervisor. While we waited for the supervisor, I engaged both of them in discussion about the various organized activities I supported, such as Libertarian Party meetings, and invited them to attend.

Finally, the supervisor showed up, and said "there are precedents" that support their interpretation of the word "maintain" in the statute, although when asked, he couldn't cite any. His argument was that the word "maintain" when applied to someone holding stolen property seemed to cover holding up a sign in one's hands. I pointed out that that was a different context, and the meaning in that context didn't necessarily carry over to this one. Then I also raised the question of whether this was really state, city, or perhaps county, property, for the purposes of the statute.

Finally, the supervisor asked me how much longer I intended to do this, and I answered that I had intended to quit at 6:00 PM (it was then about 6:15) since rush hour was over, and go on to other things, and was only waiting for them to finish before leaving. So they gave me back my driver's license, and I left. As I looked back, they continued to talk among themselves for several minutes, and I can suspect they may have been talking about the issues I raised with them.

So I didn't get arrested (darn! :) I had the impression they had a vision of the incident making national news and leading to a lawsuit. But it does raise some interesting questions. These were good cops, trying to do a good job. This was Austin. In some cities of this country they might not have been so gentle or polite. But while the legal guidance they had might have made sense to the lawyers who wrote it, it was not clear to the cops on the beat, and they had a tendency to give the words they found on a page the widest possible construction, rather than the narrowest or most reasonable.

There are two reforms that need to be made:

The first is that the word "maintain" in those provisions of the Vehicle Code needs to be replaced with the words "affixed to the land or structures on it", or words to that effect. It should also explicitly state that it does not include signs held in an individual's hands, worn on a body, or affixed to a vehicle. It might seem a bit much to include in the Code things that are not included, but cops need that kind of clarification, as do civilians.

The second is that the boundaries of jurisdictions need to be clearly marked. There should be signs and boundary markings that make it clear to anyone what is federal, state, county, city, or private property and jurisdiction. It should not be necessary to research the county deed records and plat maps, or call for a surveyor, to decide what statutes apply where. The Code needs to also specify whether by "state property" it means the land, the easement, the improvements, or what, and what the boundaries of each such component of property might be.

I maintain that any law applicable only to certain property or territory should be held unenforceable unless or until the physical boundaries of the property or territory are clearly marked on the site, showing who is the owner, or which authority has the jurisdiction, on each side of the boundary lines. Otherwise, there is not due notice to the public, or to the law enforcement agents.

So, for those of you who might enjoy reading that I spent the night in the slammer, I'm sorry. Didn't get arrested. Maybe next year.