In 1850 Spooner published A Defence for Fugitive Slaves, Against the Acts of Congress on February 12, 1793 and September 18, 1850, where he argued that juries “are judges of the law, as well as the fact” and are therefore justified in nullifying federal fugitive slave laws. “No man can be punished for resisting the execution of any law,” Spooner wrote, “unless the law be so clearly constitutional, as that a jury, taken promiscuously from the mass of the people, will all agree that it is constitutional.” Today we call this radical approach “jury nullification.”
Two years later, in Trial by Jury, Spooner developed his argument in full, expertly tracing the right of jury nullification back to the Magna Carta. “It is indispensable that the people, or ‘the country,’ judge of and determine their own liberties against the government,” he wrote. “How is it possible that juries can do anything to protect the liberties of the people against the government; if they are not allowed to determine what those liberties are?” According to Spooner, it was essential to distinguish between trial by jury, which meant trial by the people, chosen by lot, and trial by government, which was an illegal usurpation of the people’s power. “If the government may decide who may, and who may not, be jurors,” he wrote, “it will of course select only its partisans, and those friendly to its measures.” Furthermore, he said, if the government had its way, it “may also question each person drawn as a juror, as to his sentiments in regard to the particular law involved in each trial…and exclude him if he be found unfavorable to the maintenance of such a law.”
Of course, that’s exactly what happens today when potential jurors who oppose the death penalty are prevented from serving on death penalty cases or when those who oppose drug prohibition are excluded from drug cases, thereby stacking the jury in the government’s favor. As Spooner presciently observed, “if the government may dictate to the jury what laws they are to enforce, it is no longer a ‘trial by the country,’ but a trial by the government.”
Damon W. Root, “Clarence Thomas’ Favorite Anarchist: The radical anti-statism of Lysander Spooner”, Reason, 2010-09-16
September 16, 2010
QotD: Trial By Jury
September 10, 2010
Clarifying the clarification
It’s going to scroll off the front page soon, so I thought I’d better put in a link to this post about the ongoing confusion in Britain over photography and the right of the police to confiscate images or recordings in certain circumstances. I’ve updated the post twice with more information from The Register.
September 8, 2010
New Police policy: photography not illegal, but we’ll safeguard it for you
British police forces may be starting to accept that photography is legal in public spaces, but the Sussex police have come up with a new and sneaky way to get between photographers and their equipment:
According to a statement by Sussex Police: “Under Section 19 of the Police and Criminal Evidence Act [1984], an officer policing the event seized a video tape from a member of the public. Section 23 of the Act states that this can take place in ‘any place’, providing the officer is lawfully there and has reasonable grounds to believe it provides evidence of a criminal offence.
“The officer reasonably believed the tape contained evidence of a protester being assaulted by someone taking part in the march. It has been seized temporarily to ensure that evidence cannot be inadvertently lost or altered and will be returned, intact, to the owner as soon as possible.”
See, the very worst people to leave in charge of the camera or the storage media are the photographers: those people always take photos just to delete them, out of spite. The plod are totally within their rights to confiscate safeguard it, just to preserve the evidence.
Good luck on getting it back in working order, of course.
Update, 9 September: Jane Fae Ozimek updates the original story with a bit of additional information:
The police officer taking the film claimed legal justification under Section 19 of the Police and Criminal Evidence Act 1984, which permits the police to seize film or memory sticks discovered “under lawful search” and where there are reasonable grounds to believe they provide evidence of a criminal offence.
So far, so straightforward. However, under s.14 of the same legislation, police may not remove “special procedure material” of a journalistic nature without a warrant. The question therefore arises whether Williams’ filming efforts, even though he does not describe himself as “a journalist”, is nonetheless of a journalistic nature.
The waters are further muddied by a letter sent out just four days earlier by Andy Trotter, Chair of ACPO’s Media Advisory Group to all Chief Constables. In it, Mr Trotter reminds police chiefs that there are no powers to prevent the public from taking photographs in a public place. Significantly, he goes on: “We must acknowledge that citizen journalism is a feature of modern life.”
“Once an image has been recorded, the police have no power to delete or confiscate it without a court order.”
Update, 10 September: Clarifying the clarification to the declaration, or something. The Register is still on the case:
It would appear that at this point alarm bells started ringing at ACPO HQ, and late yesterday afternoon we received a further communication from ACPO. A spokeswoman told us: “We have clarified our guidance note to forces, however, as this does not affect the legal right of officers to seize photographic equipment in certain circumstances, such as during the course of a criminal investigation.
“While it is the job of police officers to be vigilant, to keep an eye out for any suspicious behavior and to act accordingly, we have been very clear in expressing our view that the taking of photographs is not normally a cause for concern. Whether s.19 PACE was used appropriately in the case in question would ultimately be a matter for Sussex.”
More to the point, Trotter’s freshly updated advice has been re-issued and now reads: “Once an image has been recorded the police have no power to delete it without a court order; this does not however restrict an officer’s power to seize items where they believe they contain evidence of criminal activity.”
For those readers too busy to play compare and contrast, the original guidance stated that the police have no power to confiscate recorded images, whereas the clarified guidance explains that they have. Clear?
September 6, 2010
When “informers” become “enablers”
Stephan Salisbury writes that many “foiled” terror plots could never have become actual threats . . . without government assistance:
Informers have by now become our first line of defense in our battles with the evildoers, the go-to guys in the never-ending domestic war on terror. They regularly do the dirty work — suggesting and encouraging the plots, laboring as bag men to move the money, fashioning the bombs, and eliciting the flamboyant dialogue, even while following the scripts of their handlers to the letter. They have attended to all the little details that make for the successful and now familiar arrests, criminal complaints, trials, and (for the most part) convictions in the ever-distracting war against . . . what? Al-Qaeda? Terror? Muslims? The inept? The poor?
The Liberty City Seven, the Fort Dix Six, the Detroit Ummah Conspiracy, the Newburgh Four — each has had their fear-filled day in the sun. None of these plots ever came close to happening. How could they? All were bogus from the get-go: money to buy missiles or cell phones or shoes and fancy duds — provided by the authorities; plans for how to use the missiles and bombs and cell phones — provided by authorities; cars for transport and demolition — issued by the authorities; facilities for carrying out the transactions — leased by those same authorities. Played out on landscapes manufactured by federal imagineers, the climax of each drama was foreordained. The failure of the plots would then be touted as the success of the investigations and prosecutions.
It’s often been observed that war is the health of the state. Can we now also say that the war on terror is the health of the intelligence agency?
H/T to Bruce Schneier for the link.
September 5, 2010
Detroit Police save money by eliminating pistol practice?
At least, based on this story, you’d have to think it’s the most likely answer:
Cop Fires Twelve Shots at Dog, Hits Two Animal Control Workers Instead
[. . .]
Detroit Police needed to remove the dogs, so they called the Michigan Anti-Cruelty Society. While the rescuers were setting traps for the three pit bulls, one got loose and started running towards a police officer. That’s when, we’re told, she pulled her gun and fired off twelve rounds.
[…]
“The police pulled a gun out and shot, but she missed the dog. I guess she was scared or something, and she hit the animal control person,” he said.
One animal rescue worker took a bullet in the back of the leg. Another grazed his back side. A stray bullet also clipped his co-worker’s boot.
Not quite the best advertisement for range safety, weapons handling expertise, or accuracy.
Craigslist surrenders, problem totally resolved
Dan Tynan recounts the glorious moral victory scored by unhappy state legislators against the final bastion of sin and decadence, Craigslist:
Bowing to pressure from 17 state attorneys general, Craigslist has begun censoring its Adult Services ads. Visitors coming to any of the 400+ Craigslist sites will encounter a big black CENSORED tab where Adult Services used to be.
As we all know, the scourge of prostitution had been entirely eradicated from modern society before Craigslist came along. And now that Adult Service ads are banned, you can expect all those hard-working gals to pack up their condoms and lubricants and enroll in secretarial school.
Alas, we fear that — despite the best intentions of 17 state attorneys general desperately trying to get re-elected — a ban on Adult Services won’t quite put an end to adult-oriented advertising on Craigslist.
September 4, 2010
When you’ve lost the Globe, you’ve lost the argument
At least it means you’ve lost the argument to keep the long-gun registry:
The Canadian Association of Chiefs of Police cannot be faulted for their recent unanimous vote in support of the national long-gun registry. Police will understandably always want as much information about those they investigate as they can lay their hands on. It is in the nature of their business. A national fingerprint registry of Canadians would no doubt also be seen as an aid to police work. But just because police chiefs would like a long-gun registry does not make it good public policy or a wise public expenditure.
[. . .]
If passed, a vote in Parliament on a Conservative MP’s bill to end the long-gun registry would not represent the end of gun control in Canada. Stringent and necessary requirements will remain in place for handguns, and restricted weapons such as automatic rifles. A process that already requires gun owners to be licensed before obtaining a firearm would remain, with safety and background checks required for gun owners. Rules for safe handling and storage of guns will remain in place. What will end is the cost, the red tape and the stigmatization of the “law-abiding duck hunters and farmers,” often cited by Prime Minister Stephen Harper. In the absence of any meaningful evidence of the long-gun registry’s efficacy, the program should be ended.
I can’t possibly emphasize how unlikely an editorial like this from the Globe and Mail would have seemed just days ago. Did we enter an alternate universe with that New Zealand earthquake? Does Spock not only have a beard, but also a Mohawk and body piercings?
September 1, 2010
“The Stig” to be unmasked
As I mentioned a while back, the BBC went to court to try to prevent a book publisher from revealing the identity of Top Gear‘s mysterious race car driver “The Stig”. The court has ruled against the BBC. James May, one of the presenters on the show, had this to say:
“Obviously I’m now going to have to take some legal action of my own, because I have been the Stig for the past seven years, and I don’t know who this bloke is, who’s mincing around in the High Court pretending it’s him.”
August 26, 2010
If you like Eminent Domain, you’ll love Montgomery’s version
Christina Walsh reports on an Alabama city’s even-more-tyrannical-than-eminent-domain law:
Imagine you come home from work one day to a notice on your front door that you have 45 days to demolish your house, or the city will do it for you. Oh, and you’re paying for it.
This is happening right now in Montgomery, Ala., and here is how it works: The city decides it doesn’t like your property for one reason or another, so it declares it a “public nuisance.” It mails you a notice that you have 45 days to demolish your property, at your expense, or the city will do it for you (and, of course, bill you).
Your tab with the city will constitute a lien on your property, and if you don’t pay it within 30 days (or pay your installments on time; if you owe over $10,000, you can work out a deal to pay back the city for destroying your home over a period of time, with interest), the city can sell your now-vacant land to the highest bidder.
H/T to Institute For Justice for the link.
August 25, 2010
Bans on texting while driving have not measurably improved highway safety
This report should come as no real surprise to anyone who’s been paying attention:
The two biggest highway-safety issues right now, as far as Washington is concerned, are runaway Toyotas and distracted driving. But what if these aren’t the most important factors driving the nation’s annual highway death toll, which averages about 100 fatalities a day?
That’s the view of Adrian Lund, president of the Insurance Institute for Highway Safety, who says the U.S. Transportation Department, Congress and the media have gotten sidetracked by issues like texting while driving.
“There’s nothing rational about the way we set highway safety priorities,” Mr. Lund says in the Insurance Institute’s Aug. 21 “Status Report” newsletter.
Mr. Lund’s organization is the safety research and advocacy arm of the insurance industry. The IIHS has been critical of the government’s highway safety policies over the past few years, usually arguing that the government wasn’t moving fast enough to require better crash-prevention technology from auto makers.
Mr. Lund and the Insurance Institute also say recent laws banning motorists from using mobile phones behind the wheel don’t correlate with a significant reduction in accidents.
“You’d think from the media coverage, congressional hearings, and the U.S. Department of Transportation’s focus in recent months that separating drivers from their phones would all but solve the public-health problem of crash deaths and injuries,” he wrote. “It won’t.”
August 24, 2010
Censors to poke noses into what Aussies can load on their iPhones?
Roger Henry sent this information to one of my mailing lists and I repost it here with his permission:
An interesting bombshell in Oz. Apple iPhones, and presumably other similar devices, have been put on notice that all, or nearly all, of the apps that people buy and install should, by law, have been submitted for “Classification” (i.e., censorship). Failure to do so is a criminal offence with penalties of some AU$35,000 per offence. Purchasing said ‘apps’ without a Classification label is also a criminal offence, punishable with jail time and/or fines. Seems that getting these ‘apps’ Classified attracts a charge varying from AU$470 to AU$2,600 so a lot of money is outstanding. With 50,000 apps already in use, the government accepts that there are some practical limitations to the matter but they aren’t going to let the matter just fade away.
This is Roger’s summary from information posted in The Australian‘s weekly IT Notes. And then, in response to a “Dude, WTF?” query:
It may well be that Apple will cease making apps available in Oz. Yes. It is known that they have their own censors. This merely compounds their culpability. What might have been an accidental oversight is now clearly a deliberate attempt to A) avoid censorship and B) defraud the government. This cannot go unpunished. As for the consumers, well, they are all probable pedophiles and identified thieves. No punishment can be too severe . . . it might take awhile but Justice will be served.
While it likely will all end in a round of dignified press releases and backslaps all ’round, there’s still the outside possibility of a highly entertaining politico-technical train wreck here. Let’s hope the wilder spirits prevail.
“One of the few thrills of working as a bylaw enforcement officer is making people cry”
Ezra Levant looks at the bylaw enforcement regime in Clarington, just east of Toronto:
It’s not a lemonade crime wave that the brave city elders of Clarington are combating. It’s the menace of backyard barbecues.
Peter Jaworski has been holding backyard barbecues at his parents’ property there for 10 years. It’s a house in the country on 40 secluded acres. Once a year, Peter invites a few dozen of his friends to spend the weekend eating his mom’s cooking and camping next to the swimming hole. I’ve been there: it’s one part family reunion, one part picnic and one part political talk.
So clearly, the Jaworski family must be stopped.
First came the health department. They poked and prodded, and even took water samples. No one has ever got sick at a Jaworski barbecue — the opposite; everyone comes for the food — but the government ordered that no home cooking would be allowed. The Jaworskis complied with these costly and ridiculous demands, catering the whole weekend and serving only bottled water, at great cost.
But bureaucrats travel in packs. A local bylaw enforcement officer waited until the barbecue itself, and marched right onto the property — no search warrant needed! — and started peppering the guests with questions.
He wasn’t a health officer; he was a bylaw officer. Yet he demanded to know what the guests had for lunch. In the name of the law!
Armed with this devastating information, the officer charged Peter’s parents with running an illegal “commercial conference centre,” which carries a fine of up to $50,000. The officer, a burly, tattooed, six-foot-something man, told Peter’s mom to “be very careful.” She burst into tears.
Why do people get this insane idea that they should be able to do what they want on their own property? If we wanted that to happen, we wouldn’t appoint bylaw officers and arm them with bylaws to quash your fun and destroy your ability to enjoy your own property!
This scourge of backyard entertainment must be defeated, and Clarington is leading the way!
August 23, 2010
Unmasking “The Stig”
A court case will decide whether HarperCollins can publish a book that reveals the identity of Top Gear‘s anonymous driver:
Publisher HarperCollins is in a legal dispute with the BBC over a book that reveals the identity of Top Gear‘s The Stig, BBC News understands.
Both sides appeared in London’s High Court on Monday after the BBC confirmed it was trying to halt its publication.
The Stig regularly takes to the track on the BBC Two show, but never removes his helmet on screen.
The BBC says the publication of the book breaches contractual and confidentiality obligations.
HarperCollins declined to give any official comment.
The dispute comes amid suggestions from several newspapers speculating that the character’s true identity is former Formula Three driver Ben Collins, based on the financial reports of his company.
August 14, 2010
QotD: Canadians and booze smuggling
Colourful, aggressively marketed and bad for you unless consumed in moderation, spirits have a lot in common with breakfast cereal. And just as Trix are for American kids only, Canadian adults are denied quite a number of wonderful products, many of them taken for granted abroad. It’s the fault of our provincial booze monopolies, of course. The only remedy for now is to cross the border and spend those 96¢ loonies. Rather than filling the trunk with discount Smirnoff on your next trip to the States, I would suggest bringing home some of the alcoholic flavours you cannot buy here, as listed below.
Review the rules on alcohol importing on the Canada Border Services Agency’s website at beaware.gc.ca. The best policy is honestly declaring what you have; if you’re over the limit you’ll just have to pay taxes and duty (unless you live in Nunavut or the Northwest Territories, which restrict the amount of booze you bring into the country).
Also note: Alberta residents are advised to use the search function at alberta-liquor-guide.com before making any suitcase-stuffing plans. There’s a chance the products below are available at home. Surprise, surprise: The lone province that doesn’t put shelf-stocking decisions in the hands of bureaucrats offers a superior selection.
Adam McDowell, “Happy Hour: Making the most of cross-border booze shopping”, National Post, 2010-08-13
August 13, 2010
QotD: Same-sex marriage in California
Me, I’m no bleeding-heart small-D democrat. But to the opponents of gay marriage, and perhaps even to unpersuaded moderates, this might seem like sharp dealing. It is one thing for the judiciary to block the will of the majority: hey, welcome to the U.S.A., tenderfoot. This, however, is a case where the judiciary may not only end up obstructing the volonté générale, but elbowing it good and hard in the vitals. Somehow, in California, a majority vote against same-sex marriage will have led directly to the near-permanent entrenchment of same-sex marriage.
Colby Cosh, “Same-sex marriage in California: the trap closes?”, Maclean’s, 2010-08-13
