Thursday, July 15, 2010

Help ! I'm Bound By Law !

That's a picture of my old colleague Tacitus. I think he practiced law in Rome about the same time I was first admitted to the Bar in California. Corruptissima re publica, plurimae leges, said Tacitus. "The more corrupt the government, the more laws it has." Lao Tzu, the teacher of Confucius, said it slightly differently: "The more laws and order are made prominent, the more thieves and robbers there will be."

As a man of modern America, I'll put it even more bluntly--there are too damned many laws, too damned many lawyers, and a government growing more corrupt by the day. One of the problems with too many laws is that it creates not only a fertile environment for selective enforcement, but it also includes a great many very silly laws that make little sense, rarely accomplish the alleged goal, and allows lazy police and lazy prosecutors to criminalize those least likely to resist.

The worst of these non-criminal criminal statutes are those commonly called "zero-tolerance" laws (although sometimes they're only the "policies" of governmental agencies). It's one of those concepts that looks good on purpose, and usually produces almost immediately a disastrous result. For example, four kindergartners were playing cops and robbers at Wilson Elementary in New Jersey. It was the usual bloody stuff. Bang, bang, you're dead. But one of the kids got creative and yelled "Boom! I have a bazooka, and I'm going to shoot you." Now I'm sure you can guess that a five year old at school didn't really have a bazooka. No matter.

The four kids were hauled off and suspended from school for three days for making threats. The school administrators not only have a zero-tolerance policy for weapons on campus, they also have a zero-tolerance policy toward any kid who pretends he has a weapon, and threatens to use the nonexistent ordnance. Puffing himself up to his full superintendent self-important height, William Bauer announced: "This is a no-tolerance policy. We're very firm on weapons and threats." He was backing up the even dumber statement of principal Georgia Bauer who had said: "We cannot take any of these statements in a light manner." Of course you can, you dipstick. Kids. Imaginary weapons. Play threats. What drugs are you people on?

I can understand the reasoning, however. It's very important to get those violent, imaginary bazooka-toting kindergarteners out of the way as quickly as possible. If they weren't removed, they might distract the rest of the students from the more important purposes of kindergarten life--such as the study of graphic sex (think I'm making that up? Check out the latest flap in the Montana schools).

John Stossel did a very good analysis of the underlying problem. Most of these "laws" are being enforced by bureaucrats with absolutely no understanding of law, justice, mercy, tolerance, and plain damned common sense. The usual response to criticism of enforcing this nonsense is "well, it's a rule, and rules must apply to everyone." Yeah. Even if it makes no sense, and the claimed offense has nothing to do with the intent of the rule. The rule was designed to protect helpless children from armed criminals showing up on campus with the intent to do harm. Try explaining that to a low-level functionary in a bureaucracy who only knows "a rule is a rule."

How about another example? Lindsay Brown was a pitch-perfect student and citizen at her high school. In 2001, Lindsay parked her car in a parking place where students weren't allowed to part. Now you think that I'm going to tell you the bureaucrat unfairly gave her a ticket for illegal parking. You would be wrong. Not satisfied with the pinnacle of success in his little life of finding a scofflaw parker, the highly-trained officer of the law peered inside the vehicle. And what did he find? An atomic bomb? A stash of weapons-grade anthrax? A cruise missile? Nope. He spotted a round-tipped butter knife. In an excess of personal bravery, the county mountie didn't call in Homeland Security, the FBI, the bomb squad, or the National Guard. Instead, at great personal risk, he arrested Lindsay on a felony weapons charge. This is going to sound familiar. When asked why he did it, this Keystone Kop replied: "A weapon is a weapon." He forgot to add "But a good cigar is a smoke."

I'll bet you didn't know that there are laws against the importation of undersized lobster tails. Well, now you know. Stossel tells the story of a bureaucrat at the National Marine Fishery Service who was lucky enough to receive an anonymous fax indicating that exporter David McNab was shipping undersized lobster tails into Alabama from Honduras. Aha! The crime of the century! So our NMFS Eliot Ness rushed to the site of the latest lobster tail delivery. In a $4 million shipment of lobster tails (that's a LOT of lobster tails), several were actually found to be undersized. But the J. Edgar Hoovers of the NMFS found an even more horrifying act of criminality.

The lobster tails were packaged in clear plastic bags. The agency knew for a certainty that Honduran law required that they be packaged solely in a prescribed type of cardboard box. Horrors! The shipment was seized, and McNab served eight years in a federal prison, even though the Honduran government informed the saviors of civilization that the regulation requiring cardboard boxes had been repealed.

We're getting closer to rule of the mindless bureaucrats like Europe all the time. They even tell you how long a legal banana is. The EU has big holdings in Africa, where they grow short bananas. The US has most of its investment in Central and South America, which produce larger, longer bananas. So, in Europe, legal bananas are conveniently shorter than illegal bananas from South and Central America. No issue of quality, taste or safety, just "smaller is better." I'm told that the EU is considering eliminating this silly rule, but I'm still waiting for the US to get rid of the Spanish-American War excise tax on telephone usage.

The list goes on. 12 year old arrested, handcuffed and taken to juvenile hall for eating a French fry in a DC Metrorail station. Asked why, in a city that is one of the murder capitals of the world, the chief of Metro Transit Police replied "We really do believe in zero-tolerance." In other words, it's illegal to bring food onto the platforms, the girl finished a French fry she had started eating before entering the platform, and, as we all know by now, "rules are rules." Just for safety's sake, he added" "Anyone taken into custody has to be handcuffed for officer safety." I can understand that. The girl might have had a hidden French fry that she could stab the officer with. The law has since been repealed.

At the University of Notre Dame, there was a double-whammy arrest which carried out both the desires of bureaucrats and First Amendment haters. Student Keith Sampson was researching the Ku Klux Klan. One day in the school library, he was reading "Notre Dame versus the Klan: How the Fighting Irish Defeated the Ku Klux Klan." So far, so good. But, terror of terrors, the book had a cover depicting the Klan. One of the sensitive nearby students who could look at pictures but apparently can't read reported Sampson for racial harassment.

Sampson was suspended, faced expulsion, and perhaps even criminal charges because he made the mistake of reading a book in a university library which was wholly anti-Klan. But oh----that picture on the cover! Asked why the young man was threatened with such drastic action, the university provost replied (do I need to say it?): "Rules are rules, and we have zero tolerance for racial harassment." Lucky for him, FIRE (the Foundation for Individual Rights in Education) took up his cause, and made the whole thing go away, except for the humiliation and fright, of course.

In case you haven't figured it out, there is a socio-political element to these laws, rules and regulations that has next to nothing with protecting the public and preserving the tradition of ordered liberty. Why risk the danger of apprehending a murderer when you can arrest people guilty of offending political-correctness or defying the fad of the day? The murderer has stuck deep at the heart of civilized society, but it's far more important to arrest someone who might be a future litterer, or closet-racist, or WMD-bearer, or even unacceptably obese. Well, after all, rules are rules.


AndrewPrice said...

These are the consequences of liberalism, i.e. the nanny state, run amok. And the enforcement of stupid rules hurts the good rules as well.

USArtguy said...

Excellent article LawHawk. I've felt that way for a long time. I've heard if one could total up all the town, city, county, state and federal laws the number exceeds 2 million(!). So, basically, everyone is breaking some law somewhere every day, even though they probably don't know it. I don't want a third party distraction, but I have often wished for a "repeal party". Though I liked Bush overall, I was disappointed when no effort was made to repeal anything Clinton did.

By the way, I've read there's a legal definition of Swiss cheese... the holes have to be a certain diameter!

StanH said...

Classic liberalism run amuck…we asked for it, and now we have it…at least some people did : (

BevfromNYC said...

Ugh, it is sad that most of the harmless fun we had as kids could be deemed a criminal offense now.

I guess I should have been locked away in a deep, dark kinder-prison for playing Civil War and "Cowboys and Indians" with all the kids on my street! We had cap guns and pretend bazookas too! Sticks served really well, if you didn't have plastic version. Maybe we can be redeemed for sometimes having a pretend M.A.S.H. unit...

Ponderosa said...

Regarding the Notre Dame issue - why isn't the 1st Amendment directly applicable? These universities are using government money. Why are these speech codes allowed to stand?

When a business accepts Federal money, the government has few qualms about arm-twisting. Heck, they’ll do it to a state with the money of the citizens of said state.

I do not know how the exceptions work for public/government schools but even then I would think (first mistake) some element of the 1st Amendment would filter through. Wouldn’t there have to be oh, I don’t know, an actual threat?

If you can’t take a four year old or even pack of them with bazookas, you probably shouldn’t leave the house.

You’re just trying to give me an aneurysm,
aren’t you?

A butter knife?
Grumble…mutter…mutter…not illegal…mutter

Unknown said...

Andrew: So true. First, an overabundance of laws that address issues in the manner of using an elephant gun to kill a gnat creates a nation of scofflaws. Second, it makes it nearly impossible to know that something one is doing that seems perfectly normal, logical, safe and reasonable is actually unlawful. And third, it creates a dangerous mindset, since any psychologist or clergyman can tell you that each time one breaks a law, it becomes easier to break the next one.

Unknown said...

USArtguy: And that code enforcement officer who cites you for having a hedge that is five feet six inches tall will tell you that "everybody knows" that the height limit is five feet five inches. And then he'll pull that old saw out of his bag of bureaucratic tools: "Ignorance of the law is no excuse." I happen to think it's a damned fine excuse.

BTW, I used that hypothetical because it's actually not hypothetical at all. A woman in Palo Alto (Stanford) California was cited for exactly that kind of violation. She called the code enforcement office simply to ask for a variance. Instead of sending her an application for a variance, they sent two cops who arrested her and dragged her off to jail. She is presently suing the city.

Unknown said...

Stan: I strongly suggest you don't move to Davis, California, where it is illegal to smoke in your own home if your house is within a certain number of feet of the house next door, and the prevailing winds might blow the smoke into one of their windows.

Unknown said...

Bev: Ain't it the truth? When I was little, we played cowboys and Indians, complete with improvised costumes, cap guns, and makeshift bow and arrows. Today, we'd be arrested for terrorist threats, felony weapons possession, along with an enhancement for committing a racial hate crime. And for good measure, we might get called before the UN for human rights violations and planning genocide.

Unknown said...

Ponderosa: Don't give up hope. The Foundation for Individual Rights in Education (FIRE) succeeded in getting the student exonerated and completely restored to his full academic rights. We all ask ourselves how these "hate statutes" and "speech statutes" get passed, but they do, and the mindless bureaucrats enforce them with robotic zeal. FIRE has been a major player at the colleges and universities in getting speech codes repealed. But bureaucrats being bureaucrats, and liberals being liberals, they've had to slog through it case by case since their victories (a near 100% record) don't seem to have the least affect on those schools which still have the abominable speech codes.

I also admit, in the interests of full disclosure, that I was an active participant in the free speech disturbances at UC Berkeley in the 60s. But in our defense, I should also add that the vast majority of us were simply demanding the right to address the public on our concerns, not to become the new oppressors who allowed only our point of view to be heard. Unfortunately, those radicals who never grew up got control of the universities, and turned our movement on its head. Despite our best efforts, there was far more freedom of speech on the UC campuses in 1962 than there is in 2010.

Joel Farnham said...


I was aware of a few of these incredible instances of stupidities of bureaucrats, but to this extent?....

Ignorance of the law is now a legitimate argument (even though the courts don't recognize it), especially when the lawmakers don't even read the laws because it takes too long!!?

It makes me hope that we as a country go the opposite way. The absolute minimum number of laws written in plain english. No fancy stuff.

Unknown said...

Joel: Thirty years ago I was already arguing jury nullification (but almost never in those terms) because of the silliness of certain laws. And that was when the nanny state was still in its toddlerhood. I was careful about not using the words "I think it's a damned fine excuse," but the average juror was perfectly capable of figuring out what I meant. And more often than not, they agreed.

In one silly trespass case, the jury couldn't find a way out from under finding my client guilty of the trespass. I had warned my client in advance that I would do my very best, but a conviction was still the most likely result. As we were shaking hands, and awaiting the next words from the judge, the jury foreman stood up and asked if he could address the issue of sentencing on behalf of the entire jury. The judge allowed it.

The words that came out of the formean's mouth were both affirmation of my position and proof that juries aren't half as ignorant as people think they are. "Your honor, we found the defendant guilty because we listened to the evidence and followed your instructions on the law. But we think the law is stupid, and everyone on this jury says they would have done exactly the same thing in the same situation. Is there any way that you could just not punish the man?"

The judge didn't miss a beat. He replied: "Thank you Mr. Foreman and ladies and gentlemen of the jury. I also applaud your understanding of the law as well as the meaning of justice." He then looked at my client and said: "Mr. _______, you've heard the verdict and the wishes of the jury. You're free to go. There will be no fine, no probation, and if your attorney plans to do what I think he plans to do, a year from now there will also be no public record of the conviction. This trial was punishment enough."

It was technically a minor victory in a minor misdemeanor case, but that moment will live in my memory forever.

Joel Farnham said...


Thank you. That does restore some of my faith. The bad thing is that some juries,(OJ's first jury) don't follow what is plain before their nose.

One unenforcible law stays on the books, it weakens all the laws around it. It is a cliche, but our current crop of lawmakers seem to not understand it.

HamiltonsGhost said...

Lawhawk--I seem to remember somebody famous discussing the other side of the coin. The sudden reduction in crime by decriminalizing what had commonly been accepted as criminal activity. The phrase I remember is "defining deviancy down."

Unknown said...

Joel: It's an ongoing war. We win a few battles, but we lose a few as well. As you've pointed out, sometimes it's just the wrong jury in the wrong place at the wrong time. The OJ prosecutors were amateurs from the very beginning, seeking publicity rather than a conviction. They put up nearly no opposition to the defense motion for a change of venue. What a difference five miles make. If that case had been tried in the West Los Angeles court where it belonged instead of the downton Los Angeles Court where it ended up, the verdict would very likely have gone exactly the opposite way. Yet the prosecution allowed a change of venue based on pretrial publicity. The exact same pretrial publicity that the final venue had seen on the same TV stations and read in the same newspapers. After months of testimony putting the noose around OJ's neck, the jury made its decision on the magic words: "If the glove don't fit, you must acquit." Phooey! That's what happens when you allow yourselves to be maneuvered into a court where the jury pool is comprised largely of people who don't have a criminal record--yet.

Unknown said...

HamiltonsGhost: That was one of my favorite Democrats--Daniel Patrick Moynihan. He had become disgusted with the total lack of common sense, and the defiance of logic that pervaded his party. He had already said that welfare programs merely perpetuated dependency on government and high rates of illegitimacy. He was an early opponent of single-payer government-run health care, recognizing that "we don't have a health care problem, we have a health care delivery problem."

A good way of thinking about what Moynihan said is to look at a really stark example. We all know that American cities have become more dangerous and more violent as liberals replace solid prevention and punishment with feel-good psychological therapy and social engineering in law enforcement. So it is a simple and irrefutable fact that the rate of capital crimes has steadily declined since the beginnings of the Warren Court. How is that possible, when we see evermore violent mass murders and extremely violent crime occurring? Simple--redefine which crimes will trigger the death penalty. The infamous Caryl Chessman was executed for a series of violent rapes in the 50s, but he never killed anyone. Today, there isn't a state in the union which could get a death penalty on that series of crimes. Yet that was in California, home of the OJ trial.

Today, the only crimes which will trigger the death penalty are first degree murder with special circumstances. More murders are occurring than we even dreamed of in the 50s and 60s, and they are often multiple murders or particularly heinous murders. But many states have eliminated the death penalty, others have narrowed it so much as to render it ineffective, and even those willing to impose capital punishment must stick to federal court-imposed restrictions on what state laws can trigger the death penalty. Therefore, the rate of capital crimes has steadily decreased because the Supreme Court and liberal state legislatures have "defined deviancy down." Simply put: Many more murders, yet fewer capital crimes. Res ipsa loquitur (the thing speaks for itself).

Tennessee Jed said...

This is why we all continue to fight the good fight against the liberal weenies each and every day. Liberals get overly concerned with "fairness" so that nobody can have anything or do anything unless everybody can have and do it.

Unknown said...

Tennessee: Combine rabid egalitarianism with bureaucratic mandates, and you have the recipe for the complete loss of freedom. I think the spirit of rebellion inherent in the majority of Americans has been reawakened, but then I never thought the plan to Europeonize America could ever have gotten this far. We have to turn this tide of sewage back before we all drown in it.

Unknown said...

LawHawk. If we haven't "gotten it" in the 2000 years since your schoolmate Tacitus, what hope is there?

Unknown said...

CalFed: I not only have had a long life, but I have a long memory as well. We did get it right at one time. The Founders knew that the minimum number of laws provided the maximum amount of liberty. So they wrote a Constitution of near-perfection that is no more than a few pages long in a small pocket version. And it worked pretty darned well for about a hundred and fifty years. Then came the Progressives followed by the liberal Democrats, and the rest, as they say, is history. Bad history.

USArtguy said...

Isn't interesting that God gets so much grief for just 10 laws?

Unknown said...

USArtguy: Boy--isn't that just the truth? And it's so simple that the secularist courts have had to make sure that no county courthouse, legislative chamber or governor's mansion should ever have those simple rules posted where an unsuspecting public might see them. Remember, if a picture is worth a thousand words, a bad law is worth a thousand pictures (usually, mug shots).

USS Ben USN (Ret) said...

Outstanding post, Lawhawk!

"Unfortunately, those radicals who never grew up got control of the universities, and turned our movement on its head. Despite our best efforts, there was far more freedom of speech on the UC campuses in 1962 than there is in 2010."

Aye. They became "the Man."
The irony is so thick a pack of "seeing irony dogs" couldn't help them see they became what they once protested so vehemently against.

It's the age-old problem so often mentioned in the Bible, where those bureaurats in power follow the letter of the law (and make bad law) rather than the spirit (or Spirit, for those looking deeper than just the surface).

Those who blindly follow the letter of the law (and who want even more laws, mostly bad or at least unnecessary ones) have lost sight of "self evident truth's" (if they ever had it).

By ignoring the spirit of the law these bureaurats also ignore true justice.
By becoming (in their eyes) "fair" they lose all sense of fairness, for one cannot possibly be "fair" if one ignores the spirit of the law (the result being more red tape and less liberty).

Why do they do it? Because, unfortunately, they are at war with reality (truth) itself.

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