Arkansas, We Have a Constitutional Problem!

Arkansas, we have a State Constitutional problem!

Twelve (12) questions for Arkansas’ Attorney General, Leslie Rutledge, the #1 Law Enforcement Official within the State of Arkansas.

Dear Attorney General Rutledge,

My name is Rickey D. Holtsclaw and I have been a citizen of the State of Arkansas for the previous four years.  I am a retired Texas law enforcement officer and while in an enforcement capacity, I endeavored, with fervor, to protect the citizenry within my area of responsibility from the egregious, exponentially increasing, intrusive, illegal, dangerous, vehicular noise emanating from automobiles, trucks and motorcycles that were illegally modified or illegally equipped with a non-compliant aftermarket exhaust mechanism.  Non-compliant motor vehicle noise, though far too often touted by untrained law enforcement personnel as a non-issue, is the #1 destroyer of good quality-of-life standards for many millions of American Citizens, especially those living in densely populated urban areas.

These illegally LOUD motor vehicles emit two-four-six or more times (logarithmic scale) the legal 80 dB(A) total noise emissions as per the Environmental Protection Agencies “Code of Federal Regulations” relevant to medium – heavy duty trucks and street motorcycles operating on the public roadways of the United States.  The U.S. Environmental Protection Agency, subsequent to thorough testing and contributions from the medical and related science communities, has stipulated that the 80 dB(A) total vehicular noise emissions restriction is the “minimum” level of protection for the general public.

Though the State of Texas has, at best, a mediocre State Law (547.604) relevant to vehicular noise emission restrictions, I can confidently affirm that The “Natural” State of Arkansas has one of the most articulate, element defining, enforceable, muffler statutes within the United States of America.  For the sake of brevity, please allow me to share informally the relevant elements of Arkansas Motor Vehicle and Traffic Law 27-37-601(a) & (b) “Noise or Smoke Producing Devices Prohibited.”

  • It is illegal to operate a motor vehicle on the roadways of Arkansas with a muffler that does not conform to the specifications of the “factory-installed” muffler – a VERY quiet muffler indeed!
  • The muffler affixed to a motor vehicle operating on the roadways of Arkansas must not emit “excessive or unusual” noise.
  • Subsection (b) of 27-37-601 specifically forbids the “sell” – retail of a muffler mechanism within the State of Arkansas that does not conform to the specifications of the “factory-installed” muffler – again, a very quiet muffler.

Every time I read Arkansas’ Title 21 Immunity Declaration the questions follow the anger. It is obvious that a State does not have a beating heart, but does it not have a conscience possessing a sense of justice, fidelity, honor and morality?  How does the State of Arkansas rationalize the Constitutional protections promised to its citizenry in exchange for the faithfulness and service of those citizens, yet legislate itself into an elevated moral standing tantamount to one that is above reproach, one that is above the law?

Has the State of Arkansas not only deceived is citizenry, but boldly lied to them as well?  How does the State of Arkansas promise its citizenry redress through the words “Every person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive in his person,” yet with stark hypocrisy rationalize or justify sheltering Municipal officials when their conduct declares them guilty of malfeasance, nonfeasance, deception, negligence and complete disregard for the health and welfare of its citizenry, the very citizenry that looks to Arkansas’ Leadership for protection and services?

Do we not pay a hefty tax for this reciprocal relationship? Is not our faithfulness and obedience to your edicts worthy of your honesty and faithfulness as promised us in the Document in which you acknowledge the providence of God? Are we not a Nation whose Government is based on the rule of law and does there not exist a civil-reciprocal-Constitutional-contract between the State and its citizens, between the Sovereign and the servant?  If the citizen severs this contract through antisocial conduct, the State swiftly delves out punishment accordingly to deter further acts of disobedience, but if Arkansas, represented by its Leadership, runs afoul of the law, the State declares itself untouchable and beyond reproach; therefore, not only denying its citizens redress, but failing to provide appropriate negative reinforcement to deter further breaches of Constitutional protections.  How can this be?

Question #1: Attorney General Rutledge, why did the Arkansas State Legislature codify such an articulate, defining, easily enforceable motor vehicle muffler law?

Is it possible that the Arkansas Legislature is in agreement with the United States Congress, the United States Environmental Protection Agency and the medical and science communities who have made the following statements relevant to environmental noise in general and unregulated motor vehicle noise specifically?

The Congress of the United States finds that,

“…inadequately controlled noise presents a growing danger to the health and welfare of the Nation’s population, particularly in urban areas.”

“…the major sources of noise include transportation vehicles and equipment, machinery, appliances, and other products in commerce.”

“…while primary responsibility for control of noise rests with State and local governments, Federal action is essential to deal with major noise sources in commerce control of which require national uniformity of treatment.”

“The Congress declares that it is the policy of the United States to promote an environment for all Americans free from noise that jeopardizes their health or welfare.”

Statement from the Environmental Protection Agency (EPA):

Noise pollution adversely affects the lives of millions of people.  Studies have shown that there are direct links between noise and health.  Problems related to noise include stress related illnesses, high blood pressure, speech interference, hearing loss, sleep disruption, and lost productivity.  Noise Induced Hearing Loss (NIHL) is the most common and often discussed health effect, but research has shown that exposure to constant or high levels of noise can cause countless adverse health affects. These sources of noise, according to the EPA are rail and motor carriers, low noise emission products, construction equipment, transport equipment, trucks, motorcycles.

According to the U.S. Congress and the EPA, primary responsibility for control of noise rests with State and local governments. Under the Clean Air Act, the EPA administrator established the Office of Noise Abatement and Control (ONAC) to carry out investigations and studies on noise and its effect on the public health and welfare. Through ONAC, the EPA coordinated all Federal noise control activities, but in 1981 the Administration concluded that noise issues were best handled at the State and local level.

Question #2: Attorney General Rutledge, from a law enforcement perspective, I can testify to the fact that Arkansas’ roadways, especially those in our Municipalities, are inundated with illegally equipped, illegally modified, illegally LOUD automobiles, trucks and motorcycles operating in stark violation of Arkansas Motor Vehicle and Traffic Law, 27-37-601(a).  Why is this unacceptable scenario, one that endangers the public’s health and destroys the quality-of-life for many thousands of Arkansas’ citizens, permitted to continue?

You have deferred culpability relevant to this question in the past, but I must contend that you, as the top law enforcement representative within the State of Arkansas, have a responsibility to answer this question, especially considering the fact that every other inquiry I’ve directed to Arkansas’ law enforcement community has either been disregarded by their leadership or their response, as evidence will substantiate, suggests “nonfeasance” as the only viable answer.

Question #3: Attorney General Rutledge, Is it possible that the culprit, relevant to the exponential increase of non-compliant, illegally LOUD motor vehicles on the roadways of Arkansas, is the result of “nonfeasance” on the part of Arkansas’ law enforcement community?

I ask this question in response to the statistical data recently received subsequent to a Freedom of Information Act request I submitted in December of 2015. An inquiry was made relevant to the number of citations for vehicular noise violations that were issued using Arkansas Motor Vehicle and Traffic Law, 27-37-601(a) “Noise or Smoke Producing Devices Prohibited” or any relevant vehicular noise ordinances.

The date of inquiry was for citations issued from April 1, 2015 through October 1, 2015.  The date specific inquiry is a six-month period inclusive of the three annual motorcycle rallies in the State of Arkansas where many thousands of illegally equipped, illegally LOUD motorcycles flood our State to participate in incredibly noisy events. Following, I have provided a summation of the FOIA statistical data recently received.

  • Arkansas State Police: A total of 38 citations (for the entire State of Arkansas) were issued by the Arkansas State Police for violation of 27-37-601(a), unfortunately, Bill Sadler, Public Information Officer for the State Police, could not/would not differentiate between citations issued for “smoke” and those issued for “noise.” The Arkansas State Police did not conduct a single investigation into violations of subsection (b) of 27-37-601 relevant to the large number of muffler retail/installation facilities within the State of Arkansas selling muffler/exhaust mechanisms that do not conform to the specifications of the “factory-installed” muffler.  Furthermore, Mr. Sadler suggested that enforcement of non-compliant muffler retail facilities is a responsibility of Arkansas’ Municipal police and Sheriff’s deputies, not the State.  Mr. Sadler could not be more incorrect relevant to jurisdictional authority and responsibility pertaining to this pervasive State-wide problem!  In reference to violations of 27-37-601(b), I have provided a video at the conclusion of this correspondence that exposes the nonfeasance of Arkansas’ State Police and the law enforcement community of Arkansas as a whole.  Duty and responsibilities of Arkansas’ State Police: http://law.justia.com/codes/arkansas/2014/title-12/subtitle-2/chapter-8/subchapter-1/section-12-8-111/
  • Arkansas Highway Police: No vehicular noise citations issued/No investigations conducted into non-compliant muffler retail facilities.
  • Fort Smith Police Department: Home of the annual “Steel Horse Motorcycle Rally.” No vehicular noise citations issued/No investigations conducted into non-compliant muffler retail facilities.
  • Fayetteville Police Department: Home of the annual “Bikes, Blues, BBQ Motorcycle Rally.” No vehicular noise citations issued/No investigations conducted into non-compliant muffler retail facilities.
  • Hot Springs Police Department: Home of the annual Hot Springs Motorcycle Rally and the Arkansas State Hog Rally in 2016. No vehicular noise citations issued/No investigations conducted into non-compliant muffler retail facilities.
  • Van Buren Police Department: A City that is inundated with vehicular noise violations in the Downtown and Fayetteville Road/I-40 area. Van Buren P.D. issued one (1) citation for violation of 27-37-601(a)/No investigations conducted into non-compliant muffler retail facilities.

Question #4: Attorney General Rutledge, considering your extensive background in jurisprudence and Constitutional Law, does the State of Arkansas have a responsibility/obligation to provide protection for its citizenry?

During my Graduate studies at the University of Houston/Clear Lake, Constitutional Law was a subject of personal interest though I must confess, I’m certainly no scholar or expert on the subject.  With that said, I interpret the concept of “protection” as the first duty of Government – a most basic Constitutional provision.

The Pennsylvania Constitution of 1776 clearly articulated the fact that “[E]very member of society, hath a right to be protected in the enjoyment of life, liberty, and property.”  From the earliest English traditions chronicled in the writings of Coke, Locke, to the 18th Century theorist, William Blackstone, the concept of a contract, compact or mutual bond exists between the Sovereign and the subject.  In layman’s terms, the subject willingly divests himself of certain natural rights and humbles himself via obedience to the King’s edicts and, in addition, pays his duty (service and/or taxes) in exchange for the protection of the Sovereign – a reciprocal civil contract if you will.  Within the pages of “The Federalist,” James Madison described “protection” of “the faculties of men,” and of “the rights of property” to which these faculties give rise, “is the first object of government.”

Am I incorrect in my assessment of a Constitutional obligation to provide protection?

Question #5: Attorney General Rutledge, do you think the concept of “protection” and the States obligation to provide same, was the intent of those who penned Arkansas’ State Constitution which articulates the following?

“All political power is inherent in the people and government is instituted for their protection, security and benefit; and they have the right to alter, reform or abolish the same, in such manner as they may think proper.”

Question #6: Attorney General Rutledge, if a citizen of the State of Arkansas is denied protection, for any sundry of reasons, in your opinion, does the following Arkansas Constitutional provision ensure that citizen the right to seek redress for said wrong?

“Every person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive in his person, property or character; he ought to obtain justice freely, and without purchase; completely, and without denial; promptly and without delay; conformably to the laws.”

For some four years now, I have observed and I have been personally audibly assaulted on many occasions, as has my family, by numerous motor vehicles operating on the roadways of Arkansas, completely unencumbered by law enforcement, while these non-compliant vehicles operate in stark violation of Arkansas Motor Vehicle and Traffic Law, 27-37-601(a).  As a law enforcement officer, I personally inspected an untold number of illegally equipped, illegally modified motor vehicles and I maintained a 99.8% conviction rate for all vehicular noise violations appearing before me for adjudication.  I understand and I know motor vehicle enforcement parameters; far too many of the motor vehicles freely operating on the roadways of Arkansas are emitting decibel levels many times over the level stipulated as safe for the general public yet, very little to NOTHING is done to rectify this egregious wrong as the previous enforcement FOIA statistics will verify.

Therefore, we must agree that Arkansas’ law enforcement community is failing to adequately provide protection for the citizens of Arkansas from the purveyors of illegally LOUD, non-compliant motor vehicles operating unencumbered on the roadways of Arkansas.  The negative ramifications relevant to the nonfeasance of our law enforcement community is exacerbated by the negligence and malfeasance of our Municipal leadership and supported by the negligent complicity of their Police Chiefs.  How can this be?

Attorney General Rutledge, please consider the thousands of illegally LOUD, illegally equipped, motorcycles operated by the motorcyclists attending biker rallies within the State of Arkansas on an annual basis, this, in addition to the thousands of Arkansas motorcyclists, many of whom are riding illegally equipped, illegally loud motorcycles that audibly assault the citizens of Arkansas on a daily basis, especially during the warmer months in our urban areas.  The three largest motorcycle rallies in our State are attended by thousands of operators atop illegally modified motorcycles yet, as the previous FOIA enforcement statistics confirm, the leadership of these municipalities do absolutely NOTHING to protect their citizenry from the dangerous, intrusive and illegal motorcycle noise!

Fayetteville’s Bikes-Blues-BBQ rally participants, those atop non-complaint/illegally LOUD motorcycles, have been violating the rights of Arkansas’ citizenry for some sixteen-years (16 years), while the Hot Springs Rally has been guilty of same for a decade.  The Steel Horse Motorcycle Rally in Fort Smith will celebrate its 2nd annual rally in the Spring of 2016.  These Mayors and their Police Chief’s are fully aware of the egregious noise violations, yet they compromise the safety and welfare of the citizens they swore to protect and serve for the tax revenue generated for their respective coffers.  For all intent and purpose, this is blatant graft and negligence!

The Loud Motorcycle Cult[ure] attending these motorcycle rallies will exclaim and proclaim that their illegal motorcycle noise emissions save lives and that they should receive a pass on their violation of the rule-of-law seeing that a number of them are participating in charities and patriotic endeavors at the rallies.  I have published a video relevant to the Loud Pipes Save Lives myth and attached the URL for that video at the end of this correspondence.  For the Loud Motorcycle Cult[ure] seeking empathy from the law in the name of philanthropy I have only one question: Is there anything an ILLEGALLY LOUD motorcyclist does at a philanthropic event that could not be performed atop a motorcycle equipped with a factory-installed, EPA compliant, quiet, muffler? See my video titled “Philanthropy or Thuggery” at the end of this correspondence.

Harley Davidson dealership statistics suggest that 80% of their new motorcycle purchasers don’t leave the retail facility without first purchasing an illegally loud, non-compliant aftermarket exhaust mechanism for their new motorcycle. It is not unreasonable to suggest that the metric/foreign motorcycle riders make the change to an illegal aftermarket exhaust at about the same 80% statistical ratio. Keep that number in mind as we look at the following statistics.

  • Bikes, Blues, BBQ Motorcycle Rally – Fayetteville – Mayor Lioneld Jordan and Police Chief Greg Tabor: 400,000 participants or more. (Not a single citation issued for vehicular noise) Police Chief Tabor has openly admitted in a letter, available on the BBB Rally Website, that the most frequent complaint from the Fayetteville citizenry, relevant to the rally, is the issue of LOUD motorcycle exhausts, yet Chief Tabor has done NOTHING to rectify the problem!
  • Steel Horse Motorcycle Rally – Fort Smith – Mayor Sandy Sanders and Police Chief Kevin Lindsey: 30,000 participants or more at the first annual rally – increased participant involvement expected for 2016. (Not a single citation issued for vehicular noise)
  • Hot Springs Motorcycle Rally – Hot Springs – Mayor Ruth Carney: numerous participants estimated. (Not a single citations issued for vehicular noise)

Not a single citation for vehicular noise was issued by the law enforcement agencies with jurisdiction during these rallies while our State was flooded with thousands of illegally equipped, illegally LOUD motorcycles. The citizens of every Arkansas Municipality along the routes to and from these LOUD motorcycle rallies suffer from the non-compliant exhaust noise, yet…NOT one citation issued!!! All for the love of money generated by the rallies and the benefit of the coffers at the expense of the health and welfare of Arkansas’ citizenry – how foolish, selfish, negligent and disrespectful of our leadership!

Question #7: Attorney General Rutledge, were you aware that environmental noise, specifically roadway/vehicular noise, is the #1 destroyer of good quality-of-life standards for many millions of Americans, especially those living within our urban areas?  Does anyone in a position of authority in Arkansas “care enough” to rectify the vehicular noise debacle in our State?

Question #8: Attorney General Rutledge, did you know that while other forms of environmental pollution are decreasing, environmental noise is increasing?  Noise that is especially harmful to our children, our elderly and our handicapped living within the communities throughout Arkansas?  Do you think the Loud Motorcycle Cult[ure] and those operating LOUD non-compliant automobiles and trucks are concerned about their most significant noisy contribution to this every increasing environmental noise debacle? I will provide you with a glimpse into the mindset of the Loud Motorcycle Cult[ure] and their perspective relevant to noise enforcement protocol, (content warning) see: https://rickeyholtsclaw.wordpress.com/2015/09/04/loud-biker-mentality-1949-v-21st-century/

Question #9: Considering the information provided, is it unreasonable to suggest that not only is the law enforcement community in Arkansas failing to provide adequate protection for the citizens of Arkansas, but that the leadership of certain Arkansas Municipalities and their police chiefs are especially culpable of negligence and malfeasance?

Question #10: Attorney General Rutledge, considering the nonfeasance and malfeasance on the part of these municipal leaders, the police chiefs and our law enforcement community, I ask you, how do you reconcile the following Arkansas Immunity Clause with the subsequent promises made to the citizens of Arkansas within the Arkansas State Constitution?

  • 2010 Arkansas Code, Title 21 – Public Officers and Employees – Chapter 9 – Liability of State and Local Governments

Subchapter 3 – Liability of Political Subdivisions

  • 21-9-301 – Tort liability — Immunity declared.

(a) It is declared to be the public policy of the State of Arkansas that all counties, municipal corporations, school districts, special improvement districts, and all other political subdivisions of the state and any of their boards, commissions, agencies, authorities, or other governing bodies shall be immune from liability and from suit for damages except to the extent that they may be covered by liability insurance.

(b) No tort action shall lie against any such political subdivision because of the acts of its agents and employees.

Arkansas’ Constitutional promise of protection

“All political power is inherent in the people and government is instituted for their protection, security and benefit; and they have the right to alter, reform or abolish the same, in such manner as they may think proper.”

“Every person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive in his person, property or character; he ought to obtain justice freely, and without purchase; completely, and without denial; promptly and without delay; conformably to the laws.”

Question #11:  Attorney General Rutledge, how can the reciprocal – civil – contractual agreement between a State and its citizenry exist when Constitutional immunity protections completely shelter state officials from civil liability, especially when those state or municipal representatives are blatantly guilty of egregious acts of negligence, malfeasance and/or nonfeasance?

Question #12: Attorney General Rutledge, how can the State of Arkansas, in all good conscience, deny its citizenry the promises of civil redress for Constitutional wrongs committed by those in whom these faithful citizens have placed their trust for protection and services promised them within Arkansas’ Constitution?

Attorney General Rutledge, I certainly agree with the concerns of the State relevant to the necessity of providing protections from bankruptcy as a result of civil action/redress where agencies of the State are concerned, but in my humble opinion…

The State of Arkansas, for purposes of equity, fairness, reasonableness, fidelity, should provide some form of censure, redress, impeachment, when sworn representatives of the State violate the civil protections/civil contract resulting in harm to its citizenry; protection and redress for wrongs being the most fundamental principles undergirding the Arkansas State Constitution and the United States Constitution.

Arkansas’ failure in this matter is a most egregious violation of the reciprocal Constitutional obligation and reflects very poorly on the integrity of the State of Arkansas.

Attorney General Rutledge, you, as the top law enforcement officer within the State of Arkansas, along with the State, County, Local, Law Enforcement Community representing the State of Arkansas, in conjunction with those Arkansas Municipal Leaders who are compromising their oath of office and, more importantly, the health and welfare of the citizens they swore to protect and serve, are failing to provide protection for the citizens of Arkansas from the purveyors of illegally equipped, illegally LOUD, dangerously intrusive, motor vehicles operating in stark violation of Arkansas Motor Vehicle and Traffic Law, specifically, 27-37-601 (a) & (b).

Attorney General Rutledge you, along with the law enforcement entities and municipal leadership mentioned previously, have severed the reciprocal-civil-Constitutional contract and have furthermore denied the citizens of Arkansas their Constitutional right to civil redress for wrongs committed against them by failing to provide a method of censure, redress, impeachment for Official misconduct, negligence, nonfeasance and malfeasance.  This is shameful, irresponsible and negligent behavior on the part of Arkansas’ Leadership.

Without the reciprocal-civil-contract embodied within Arkansas’ Constitution and a viable form of redress for wrongs committed by the State, redress sufficient to deter future violations of that contract, totalitarianism manifests and the citizenry likewise suffers without recourse or recompense.  This is unacceptable and an injustice.

Videos Relevant to this Letter

Evidence of Law Enforcement nonfeasance in Arkansas: https://www.youtube.com/watch?v=XZ–8v2S784

Biker Rallies and Your Rights: https://www.youtube.com/watch?v=TnWVin8NUko

Do Loud Pipes Save Lives?: https://www.youtube.com/watch?v=qRxyoSj4sNU

Philanthropy or Thuggery: https://www.youtube.com/watch?v=dCvd-j6yMMM

Motorcycle Noise and the Constitution: https://www.youtube.com/watch?v=t4MNoNTzPOA

Are Motorcycles Manufactured to be Loud?: https://www.youtube.com/watch?v=7kfKbEXI2ng

Sincerely,

Rickey D. Holtsclaw

Uniontown, Arkansas  Arkansas State Seal

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