City law is being abused
No person shall … be deprived of life, liberty, or property, without due process of law …
– Fifth Amendment,
Bill of Rights
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, … to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
– Sixth Amendment,
Bill of Rights
It is ironic that on Independence Day, when Americans celebrate the birth of our nation, the city of Gilroy handed out 42 administrative citations, accusing various residents of using illegal fireworks without bothering to go through the formality of due process.
We understand the frustration that prompted the city of Gilroy to adopt the administrative citations. And, in fact, supported the move initially. Gilroy remains the only city in Santa Clara County to allow the use of safe-and-sane fireworks. Pyromaniacs take advantage of the covering fire, so to speak, to let off various illegal fireworks. By 2005, when the ordinance was adopted, the barrage of illegal fireworks began days before the Fourth, and continued past midnight. Illegal aerials competed with the official city-sponsored aerial display. Meanwhile, police and firefighters had their hands full.
So the ordinance was adopted. In 2005, two municipal citations were handed out. In 2006, 18 municipal and 40 administrative citations were issued; in 2007, those numbers were 18 and 42.
Unfortunately, the power of the administrative citation is being abused.
Residents are complaining that their citations were undeserved. Jason Robinette says he was not home when somebody used his yard to set off illegal fireworks. Elisa Torres-Fernandez does not think she should be held responsible for the crimes of every teenager on the block. Robert Bischoff complains that four officers took down his address and cited him, instead of arresting the actual perpetrators.
Residents will have a chance to contest the citations at August hearings, but “there are very limited situations that provide for a successful appeal,” letters to those cited warned.
The outraged residents are right. It is unfair that a homeowner can be cited for a crime he did not commit. It is unjust that no one has to witness the alleged criminal setting off the devices.
And only a city attorney could claim that it is constitutional to deprive a person of his rights by slapping him with a fine without due process, presumption of innocence, a speedy and public trial, and witnesses.
The city of Gilroy has options for fighting illegal fireworks. We can triple the fines for criminal citations. We can marshal more volunteers with video cameras to document actual law-breaking.
But respect for the Constitution demands that the City Council rescind the administrative citation ordinance. Depriving citizens of due process on this day of all days is unjust, unfair, and unconstitutional.
