Dad, There’s Big Government in Our Back Yard!
By
James Scott Trimm
By
James Scott Trimm
Today I want to blog about my own personal experience with
big government in the City of Hurst and its flagrant disregard for my personal
freedom and my constitutional rights.
Sometime around 2006 I started having “problems” with a
certain code enforcement officer. Among
other things, we received a citation for having “rotting fruit” in our front
yard. (The rotting fruit was the
natural fruit which dropped from a pear tree in our front yard, the tree had
been there since before I was a small child in the 60’s and in all of those
years we had never been cited for this occurrence of nature.)
Then in May of 2011 this same code enforcement officer put a
sign in our front yard stating that our grass was to tall and iv violation of
city code… although the grass of the house next door was the same height, and
the grass across the street was noticeably higher. I made a video at the time, demonstrating this:
Find more videos like this on Nazarene Space
At this same time I was issued a citation for “trash and
rubbish” in my yard. I was anxious to
get to my court date to find out what this “trash and rubbish” actually was,
but before we could get to court, yet another citation was issued for “trash
and rubbish” in our yard.
A few days before our preliminary hearing, my children came
to my bedroom to inform me that there was a team of men doing yard work in our
back yard. I ran outside and asked what
was going on, and they told me that the city had sent them. (It seems the city was going to send me a
bill for this).
At this point things had gone to far, so I called my
attorney, Larry Meadows, and he told me to ask them if they had a court order,
and that of they did not, to tell them to leave my property, and tell them they had no right to go into my back yard without a court order and/or a warrant.
Sure enough, they had no court order, and they left. I spoke with the code enforcement officer who had sent them and she informed me that she would be back with a court order. She did ask the judge for a court order a few days later and
he did not grant her request.
In the following months we dealt with the “trash and
rubbish” citations. At first we were
told that our property was the most complained about property on the Mayor’s
complaint line, but when we asked in discovery for all records of these complaints,
the city turned out not to have any record of any complaints. At one point the code enforcement officer
showed the judge a photo which she claimed that she took of our back yard from
the street using a telephoto lens, despite the fact that she had never gotten
the required court order for optically aided surveillance.
Finally we received in discovery photographs of the “trash
and rubbish” which turned out to be nothing more than overturned lawn
furniture, an overturned lawn fertilizer and a lawn mower, scattered in my back
yard.
The problem is that the code enforcement officer had gone
wandering around in my back yard taking pictures, with no warrant, in complete
violation of my fourth amendment rights.
Our Texas courts have consistently maintained that a Texan’s
right to privacy extends in a suburban setting to the backyard of his or her
home, even where there is no fence and where there is not a “no trespassing”
sign. In 2004, the Waco Court of
Appeals concluded the defendant's unfenced backyard was curtilage of his mobile
home. Pool v. State, 157 S.W.3d 36, 41–42 (Tex. App.—Waco
2004, no pet.). That court said:
[W]e are loathe to hold... that residents failing to erect a
complete enclosure around their backyard no longer enjoy Fourth Amendment
protection in their backyard. This type of bright line rule would restrict
Fourth Amendment protections to only those capable of affording such
enclosures, while those incapable lose privacy interests in their backyards.
And in a 2010 case, the Fourth District, San Antonio Court
of Appeals concluded that the defendant had a constitutionally protected right
to privacy in his backyard even where there was no fence and there was not a
"no trespassing" sign posted anywhere on the property. Cooksey vs. Texas, 04-10-00424-CR.
When it came time to set my case for a jury trial, the
municipal judge at first assigned me a court date which fell on Rosh
HaShanna. I checked my calendar and
politely responded that I could not be in court that day, because it was Rosh
HaShanna. He asked what that was, and I
politely responded that it is a Jewish holiday. The judge then asked his court clerk in a sarcastic manner, if
the Tarrant County courts were open on that day. The court clerk responded “yes” and the judge then informed me
that his court would be open as well, and that I was to be in court on that
day. I then responded with shock and
bewilderment “Really? You wont respect
a Jewish holiday? The Tarrant County
courts are closed on Christian holidays, why should I be treated differently.” At this point the judge begrudgingly
rescheduled my court date. I had
wondered why my attorney, who shared my religious beliefs and was standing next to me, had not
complained. He later told me that he
was planning a formal motion and an then appeal, because Texas has a statute that specifically required the judge to rule
in favor of a sincere request to reschedule a court date due to a religious
holiday.
So the day came for our jury trial, my attorney had a
“Motion to Suppress” in his briefcase, ready to file, when the city suddenly
wanted to “make a deal.”
Let me add here that up to this point the city attorney had
refused to negotiate period (and we had tried for months to dialog with them). But when
we showed up for our jury trial, suddenly they wanted to make a deal. And the deal they offered was to good for me to pass
up. They agreed to drop one of the
citations completely and agreed to wave any fine on the other if I would agree
to 20 hours of community service. Since
my attorney was a personal friend working pro bono, I did not feel I could ask
him to work free through a jury trial, when I could make the whole matter “go
away” with 20 hours of charity work.
However my attorney did clarify with the city attorney, that code
enforcement should not be going in my back yard without a warrant in the
future.
This whole matter was symptomatic of the big government
problem we have in Hurst Texas. Limited
government does not go wandering in your back yard looking for code
violations. Limited government does not
seek to regulate the natural occurrence of fruit falling from a tree. Limited government respects your personal
freedom and most especially your constitutional rights of privacy and freedom
of religion.
You can listen to myself and my attorney Larry Meadows discuss this case at length in this 2011 podcast of "Restoring Our Nation":
By the way, if you ever need a lawyer, I can definitely recommend my friend, Texas attorney Larry Meadows at http://www.meadowsllp.com who represented me in the above case.
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