The Jurisprudence Of Found-Object Taxidermy

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Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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  1. Avatar Oscar Gordon
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    says:

    I had sent this to Will for Linky Friday, but you got there first.

    I’m sanguine about accepting such a claim as a mitigating factor at the phase of sentencing.

    For strict liability crimes, we should have graduated penalties such that unless it can be shown that the law in question is one the defendant should be very familiar with (your truck driver and laws regarding driver working hours, for instance), the penalty for a first offense should almost always be a low level misdemeanor and very modest fine. One would think, after getting such a slap on the wrist, the defendant would educate themselves more completely regarding that specific area of law, and thus avoid future trouble.

    That a first offense for a crime that harms no one could result in a felony conviction, thousands of dollars in fines, and significant jail/prison time gives lie to any legitimate concept of justice or good social order.Report

    • Avatar Don Zeko in reply to Oscar Gordon
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      says:

      That’s fair, but I wouldn’t say that truckers working long shifts is necessarily a victimless crime, since a fatigued driver is a risk to everyone on the road, including themselves. The whole notion seems to be to criminalize negligence before the failure to exercise due care actually results in an injury. It may not be a very wise idea in this case, but there’s a logic to it.Report

      • Avatar Mike Schilling in reply to Don Zeko
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        says:

        And if it’s a pattern at a trucking company that their schedules ignore those rules, the fines should be large and painful, and egregious violations should be criminalized.Report

      • Avatar Oscar Gordon in reply to Don Zeko
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        Yes but a truck driver has a much greater burden to show that they made an honest mistake of the law since one can assume it is part of the CDL training.Report

      • Avatar Road Scholar in reply to Don Zeko
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        As the resident truck driver let me chime in here. @oscar-gordon is correct; drivers are expected to know the hours-of-service rules as well as any other rules from the fairly thick DOT regulation book that applies to us. It’s also part of the Federal regulations that since I have the legal responsibility for following the regs I also have the legal authority to tell my company to piss up a rope if they try to tell me to do something the violates those rules and retribution is officially not allowed. I’m also responsible for paying any fines for violations that are under my control.

        But @mike-schilling is correct in his assumption that some (actually many) companies will pressure drivers to “bend” the rules now and then. I’ve worked for such a company. At one point I simply had to tell my boss that it was all well and fine that they were willing to pay any fines that may result but when I asked him if I ran over a minivan and killed a family when I was in violation would he also be serving my prison sentence he… demurred on that point.

        I now work for a company that takes safety and compliance seriously and somehow I’m making more money than I have anywhere else. Imagine that.Report

  2. Avatar LeeEsq
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    In criminal law, what is illegal alligns close enough to common sense ethics and morality that knowledge of the law isn’t really necessary. It should be a no-brainer that killing people is against the law even if a law person would stuggle to distinguish between murder 1 and 2, voluntary manslaughter, involuntary manslaughter, and the rest of the homicide statutes. The same is true for practically every other criminal offense. Even victimless crimes like prostitution or corruption have some alignment with popular morality.

    For civil law, its different but civil procedure has enough steps to give the defendant notice on why he or she is being brought to court that ignorance of the law still isn’t really a defense. By the times things get before a judge, a defendant should know why he or she is being sued.Report

    • Avatar Burt Likko in reply to LeeEsq
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      Is this really the appropriate standard: that the defendant is aware that the action is prohibited before trial? Seems to me substantial fairness is achieved when the defendant is aware of the prohibition before engaging in the act. I’m satisfied at the level of defendant being reasonably able to learn of the prohibition. But I think that a defendant who is in good faith ignorant of the law until the time of arrest presents a tougher case.Report

    • Avatar Oscar Gordon in reply to LeeEsq
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      says:

      @leeesq

      While I am inclined to pay you regard in matters of law (you being a lawyer and all), I have two questions/quibbles:

      1) What is the difference between criminal & civil law? You seem to imply that criminal law falls under malum in se, & civil law is malum prohibitum. My quibble is, if an infraction of either set can result in a criminal record, what is the practical difference.

      2) I think there is a lack of sufficient civil procedure, as you say, to prevent the unawares from running crosswise with the law, or possibly, the benefit of such procedure is at the discretion of the DAs office, and not a process that must be followed. If I am wrong here, can you explain how?Report

      • Avatar LeeEsq in reply to Oscar Gordon
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        Criminal law is one that results in a criminal penalty. In a typical criminal case, the burden of proof is on the state and it must be beyond a reasonable doubt. It has an entirely different procedure than a civil trial. It isn’t necessarily malum in se but most of it does involve things that people think should be illegal. People think that taking other people’s property is wrong even though most wouldn’t be able to distinguish between larceny, robbery, and extortion by their legal definitions.

        Civil law is everything else; torts, contracts, family law, wills and trusts, etc. The penalty is usually monetary but it could sometimes by an equitable form of relief like an injunction, a court order to do or not do something. A private party usually needs to initiate it. The standard of proof and procedures are lower.Report

      • Avatar Oscar Gordon in reply to Oscar Gordon
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        says:

        @leeesq

        OK, that makes sense, but the point Prof. Reynolds was making is that there is a great deal of regulatory law that results in criminal penalty, and a great deal of that regulatory law is not obvious in they way that “common sense” criminal law is, but can still result in severe criminal penalties. Ideally DAs would look at the totality of a situation, determine if the defendant made an honest, good faith error, and dispense with the case with a minimum of pain for everyone. The reality is that while this does happen, there are also times when the DA has an axe to grind, or a campaign to run, or bones to make, and honest mistakes are treated as serious crimes.

        As per your definition of civil law, yes, the procedure is usually sufficient to let people know they are about to really step in it (although it can be problematic as well, see CA ADA and lawyers bounty hunting for violations).Report

    • Avatar dragonfrog in reply to LeeEsq
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      says:

      In criminal law, what is illegal alligns close enough to common sense ethics and morality that knowledge of the law isn’t really necessary.

      As a lawyer you’re probably sick of people pointing to this video https://www.youtube.com/watch?v=6wXkI4t7nuc – but I found it extremely interesting. The two points made back to back starting around 5:45 seem relevant counterpoints to that statement

      – The congressional research service can’t even count all the federal crimes, much less all the state ones.

      That does not seem consistent with a criminal code that merely codifies common sense ethics and morality.

      – (To my reading of the law quoted there) in order to legally buy, sell, or transport a fish or plant in the US, you need to know its entire history, and every single law of every single country in the world, and compare the two.

      Which if nothing else suggests that efforts to legalize marijuana in the US are doomed – if any single country in the world leaves it illegal, any handling of marijuana would presumably fall afoul of the “foreign law” provision there…Report

      • Avatar dragonfrog in reply to dragonfrog
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        One of my favourite Canadian examples – if you plant a pack of poppy seeds from the seed rack at the garden centre (or the poppy seeds sold in the bulk bins at the grocery store, if they’re fresh enough to sprout), you’re “producing a schedule I controlled substance” and liable for up to life imprisonment.

        You don’t have to extract the opium from the plants, just grow them. You don’t have to know that growing poppies is illegal, despite the seeds being for sale at every garden store in the country, only that they are indeed poppies.

        That’s not a codification of common sense ethics and morality. Ignorance of the law really should be a defence against that one. (Well, if you ask me, the law should just be struck down for the idiocy of banning a species)Report

  3. Avatar Chris
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    says:

    Enjoyed reading this, Burt, thanks.Report

  4. Avatar zic
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    says:

    Interesting.

    When I went to Alaska (Juno; college visit with one of my kids,) we went out to Douglass Island, drove to the end, and walked down to the beach. Saw what looked like an odd seaweed rib sticking out of the sand when I first stepped down onto the beach, and being the curious person I am, I went to check it out. It was a big, black feather with a white rib, and the white rib had caught my eye. I picked it up, cleaned it off, and took it back to our hotel; I hadn’t a notion yet of what I’d found.

    For the few days before, the hotel staff had treated us like all other Alaskan tourists; basically ignoring us as much as possible. But when the feather appeared, that changed. The woman who cleaned our room asked me about it; where I’d found it. I told her the above story. “It’s an eagle feather,” she said. She came, with another woman, and spent her lunch break with me. The next day, there were four of them, The day after, eight. Our final day, when we were packing to go, every woman who worked there, and a few neighboring places, showed up. They were concerned about me getting my feather home. They made phone calls, they talked to the state’s wildlife biologist. He told them to how to pack it, to carry it in my bag and not on my person, and have them give me his phone number in case there were any questions as I went through airport security.

    Now I’d been aware that bald eagles were on the endangered species list, but not that found feathers were an issue before. Ironically, I have three; the found feather, and two given to each of my children (golden eagle) by Charlie Eagle Plume, who ran a trading post in CO. They are part of a bouquet of feathers in a vase on the mantle.

    But I remain, to this day, amazed at 1) the change in the hotel staff toward me after I found and brought that feather back to the hotel; I went from being blank person to a real person, and 2) how much effort and concern they put into its transport, because unlike me, they were aware of the laws.Report

    • Avatar zic in reply to zic
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      says:

      I should also note that these laws are a big deal for instrument makers, who often use protected tropical wood — rose wood, ebony. Ivory is no longer used on piano keys. Gibson Guitar <a href="http://www.motherjones.com/blue-marble/2012/08/gibson-and-feds-settle-illegal-wood-case&quot; was raided and settled a claim, admitting guilt over ebony from Madagascar.

      And in the antiques market, the sale of certain old items are often problematic.Report

      • Avatar Oscar Gordon in reply to zic
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        says:

        Although raiding a guitar maker with a federal SWAT team seems a bit much…Report

      • Avatar zic in reply to zic
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        says:

        I had a family member who’s business was purchased by Gibson, ruined by Gibson, and who then re-purchased it to build it up into a thriving company; and I own two Gibson guitars and a mandolin. I also know luthiers who left after the new management rolled in.

        So I have much mixed feeling about the company; but new management does seem worth examination; lowered quality of instruments, inflated PR and some weird/bad business decisions are all matters of concern.

        Which does not excuse SWAT teams. (Unless you think luthier tools make good weapons. . . )Report

      • Avatar Kim in reply to zic
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        says:

        Oscar,
        still better than sending the Marines to blow up a data center.Report

      • Avatar Oscar Gordon in reply to zic
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        says:

        @zic

        I have no opinion of the company itself, except that for all intents & purposes, the feds seems to be rather heavy handed in their approach, which remains a disturbing trend on the part of all law enforcement lately.

        @kim

        As usual, WTF are you going on about?Report

      • Avatar zic in reply to zic
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        says:

        the off-shore data center that was shut down by the feds at the behest of AmericanEntertainmentIndustries for intellectual property theft.

        It was a big deal; and a lot of people lost a lot of information they’d paid to store there.

        And since people seem so willing to jump all over Kim, I will defend her that this is a legitimate point to raise in the context of SWAT teams.

        (Ya’ll need to lighten up on her, particularly if you don’t get her references; often they’re insightful.)Report

      • Avatar Kim in reply to zic
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        says:

        zic,
        what gets me is the pure and utter lack of intellectual curiosity.
        I mean, sure, it probably had tons of viruses and crap all through it…
        But didn’t they at least want to know what nasty little beasties were there?

        Ya know, because nasty little beasties are useful to government agencies wanting to send North Korea a message? ;-PReport

      • Avatar Oscar Gordon in reply to zic
        Ignored
        says:

        @zic
        @kim

        Links people! Or at least searchable key words! As much as I’d like to, I can’t know about every crappy thing our government does, there’s just too much.Report

  5. Avatar Griff
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    says:

    This is nitpicky, but a good faith claim of right is a complete defense to a charge of theft; you can’t be convicted of larceny if you didn’t have a specific felonious intent to steal.

    As to the more general point, I think most regulatory offenses should be treated as civil violations rather than criminal offenses. Basically any strict liability offense that is, as we fancy legal types say, malum prohibitum rather than malum in se, seems to me like an inappropriate subject of the criminal law.Report

  6. Avatar Oscar Gordon
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    says:

    I do think Prof. Reynolds does have one other very valid point. It is very problematic that government employees can break laws & violate rights, then claim ignorance and, unless it can be shown that they specifically should have known better, hide behind immunity.

    While this arrangement has the support of the courts, the practical effect is to create a situation where equal protection under the law, isn’t.Report

    • Avatar Burt Likko in reply to Oscar Gordon
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      says:

      I agree; it is a strong example of how the idea could work, amd why. With that said, bear in mind that the doctrine exists to protect the government itself, not (just) the government’s employees.Report

      • Avatar Oscar Gordon in reply to Burt Likko
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        says:

        doctrine exists to protect the government itself

        This I understand & can see the reason for. The fix, to me, is simple – instead of granting immunity to the employee, you grant it to the government itself.

        To use the most obvious example, if a cop violates your rights, you can press charges against the cop, or sue the cop, and the cop as an individual is the only one on the hook for punishment or damages. You can not succeed in a suit against the department/city unless you can show that leadership was complicit in the underlying offense (such as a culture of racism that leadership fostered or failed to control that inspired officers to act unfairly toward a subset of the population; see Ferguson, MO).

        It stops people from trying to get at the deep pockets of government because an employee was bad, and it addresses the problem of bad employees being protected because the government has to protect itself.Report

      • Avatar Will H. in reply to Burt Likko
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        says:

        The issue of indemnification makes it more onerous.Report

    • Avatar Jaybird in reply to Oscar Gordon
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      says:

      I would like to say that I agree with this comment to the point where I feel embarrassed that there isn’t anything more to say than “I agree with this comment”.Report

      • Avatar Don Zeko in reply to Jaybird
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        says:

        I suspect there’s a fairly broad consensus on this site that modern qualified immunity doctrine is double plus ungood, at least for those of us who have had the pleasure of learning about it.Report

    • Avatar Griff in reply to Oscar Gordon
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      says:

      Qualified immunity isn’t about ignorance of the law, it’s about a lack of clarity regarding whether something is legal or not. Ignorance is no excuse even for an officer who has qualified immunity; if it would be clear from reading prior Supreme Court caselaw that what the officer did was a violation of the constitution, it doesn’t matter whether the officer had read the cases or not. What the qualified immunity doctrine says is that, in a situation where it wouldn’t be clear from reading prior cases that an act was unconstitutional, the officer can’t be held liable for the act even if the court later decides it was illegal. This is one of several reasons that qualified immunity isn’t a good analogue for the problem of strict liability regulatory crimes.Report

      • Avatar Griff in reply to Griff
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        says:

        None of which is to say that there aren’t problems with the qualified immunity doctrine — there are big ones! But it’s really not an “ignorance of the law” situation.Report

      • Avatar Oscar Gordon in reply to Griff
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        says:

        @griff

        Perhaps that is how qualified immunity is supposed to work, but in practice that shoulda coulda woulda leaves a lot of wiggle room for government employees to use. Otherwise, in this age of cell phone videos of police violating civil rights, cops would be losing their jobs left & right.Report

  7. Avatar Oscar Gordon
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    says:

    Can you expand on that?Report

    • Avatar Will H. in reply to Oscar Gordon
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      says:

      Most government employees are indemnified, some by statute, against any claims arising from their employment.
      In Missouri, the liability of a municipality is limited to the amount of insurance coverage the municipality carries.

      That is, in most, if not all, cases, when suit is filed against a cop, it’s really the municipality fighting against a claim on their insurance policy.

      That said, I know a guy that had a frivolous sec. 1983 claim filed against him in So. Carolina, where the police are not indemnified. He found out he was being sued when his bank account was seized, before he was served.Report

      • Avatar Burt Likko in reply to Will H.
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        That’s a strange way to apply the Due Process Clause y’all got down there, Palmetto State.Report

      • Avatar Oscar Gordon in reply to Will H.
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        Then I guess that is what I’m getting after, adjusting that indemnity such that it doesn’t apply in cases of wrong doing. (Specifics of that would be tricky I imagine) .Report

      • Avatar Will H. in reply to Will H.
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        They didn’t supply him with an attorney either, which I thought was automatic.
        But then they don’t supply attorneys for either side in misdemeanor cases either; the arresting officer acts as the prosecutor, unless it’s a jury trial.

        Sometimes, it’s amazing how much they can get away with, while other times, it’s amazing how little they can get away with.Report

  8. Avatar Will H.
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    says:

    good faith ignorance being a good defense to a crime.

    United States v. Stevens< was either the first or second successful defense of sec. 1519.

    Good faith reliance on the advice of counsel is only relevant to specific intent crimes because such reliance demonstrates a defendant’s lack of the requisite intent to violate the law. United States v. Miller, 658 F.2d 235, 237 (4th Cir.1981) (“The reliance defense … is designed to refute the government’s proof that the defendant intended to commit the offense.”). United States v. Polytarides, 584 F.2d 1350, 1353 (4th Cir.1978) (“The basis for the defense of action taken on the advice of counsel is that, in relying on counsel’s advice, defendant lacked the requisite intent to violate the law.”).

    Have to get bad advice from counsel before proceeding to pick up eagle feathers, I’d say.
    Creates a perverse market for bad advice of counsel, no less.Report

    • Avatar Burt Likko in reply to Will H.
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      My goodness, the topic is deep enough before getting into general intent or specific intent issues. The focus of Mr. Cottone’s argument is on strict liability crimes, ones for which at this point there is no mens rea issue. Think: “statutory rape, good faith mistake regarding age of consent.”Report

      • Avatar Will H. in reply to Burt Likko
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        says:

        I’m having a hard time thinking of any strict liability criminal offenses other than traffic offenses. (Go figure.)
        Some of those seem like they may be subject to a defense of good faith reliance. Though a cross-claim is barred, a civil action partial recovery might stand. I just haven’t tabulated all the elements yet.
        It seems more feasible in a negligence action. the good faith defense; the cross-claim would be viable then.

        I remember discussing strict liability torts, and those were the ones that were really, really, bad.
        It doesn’t look like that aspect of it transfers over to criminal law.
        Odd, that.Report

  9. Avatar Lyle
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    says:

    Actually this issues resonates with the Religious Freedom Restoration act at the federal level as many native american religions regard Eagle Feathers as they are an important point of their religion: http://www.abajournal.com/mobile/mag_article/american_indians_challenging_eagle_feather_rules_get_a_boost_from_hobby_lob
    In the particular case a member of a non recognized tribe picked up some feathers. The above article implies this case may end up before the supreme court.Report

  10. Avatar Vikram Bath
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    says:

    I agree with Burt on everything here, but I’d add that the present situation seems very unfair to me as a citizen. I wish lawmakers would perhaps use some more discretion in making laws that are likely to create criminals who lack any criminal intent.Report

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