Several readers have pointed me to this New York Times article:
Elliot Madison, 41, a social worker who has described himself as an anarchist, [was] arrested in Pittsburgh on Sept. 24 and charged with hindering apprehension or prosecution, criminal use of a communication facility and possession of instruments of crime. The Pennsylvania State Police said he was found in a hotel room with computers and police scanners while using the social-networking site Twitter to spread information about police movements. He has denied wrongdoing....
A criminal complaint ... accuses him of “directing others, specifically protesters of the G-20 summit, in order to avoid apprehension after a lawful order to disperse.” ...
After Mr. Madison’s arrest, other Tin Can participants continued to send messages, now archived on Twitter’s Web site. Many of those messages tracked police movements. One read: “SWAT teams rolling down 5th Ave.” Another read: “Report received that police are ‘nabbing’ anyone that looks like a protester / Black Bloc. Stay alert watch your friends!” ...
This might well be a special case of a tough constitutional issue, which I discussed at some length in my Crime-Facilitating Speech article: When may speech be restricted because it provides others with information that may help them commit crimes, here by helping them evade arrest? Consider a driver who flashes his lights to warn other drivers of a speed trip, or articles, books, or Web pages that describe
- how people can effectively resist arrest during civil disobedience,
- how easy it is to fool supposed “ballistic fingerprinting” systems,
- how easy it is to fool fingerprint recognition systems,
- how one can organize one’s tax return to minimize the risk of a tax audit,
- how one can share music files while minimizing the risk of being sued as an infringer,
- how one can more effectively conceal one’s sexual abuse of children,
- how one can more effectively encrypt messages or files,
- how one can build a bomb,
- how one can grow marijuana,
and so on. (I have citations for many of these examples in the article.) A very interesting set of questions, I think, which the Court has never resolved.
Daniel Chapman says:
How could it possibly be a crime to flash one’s lights to warn a person of a speed trap ahead? Aren’t you in effect telling people “Obey the speed limit or you will get a ticket?” I hope I get caught doing that someday and I get the opportunity to tell the cop off.
Whit?
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October 12, 2009, 7:40 pmMark N. says:
The precise charges would be important here, I think. I would personally find conspiracy charges much less problematic than attempting to convict this guy solely on the basis of his posts to Twitter. The article makes it somewhat unclear, but seems to imply the government plans to allege that the mere reporting is illegal (probably because proving conspiracy is harder), which I’d find somewhat more troubling.
The order-to-disperse connection is strange, though. An order to disperse doesn’t actually put anyone in violation of the law, unless they actually fail to disperse when ordered. From that perspective, “directing others” that such an order has been issued, and providing them with information on how to leave the scene of the dispersal, is actually encouraging lawful behavior, viz. compliance with the dispersal order.
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October 12, 2009, 7:41 pmRPT says:
Wasn’t the defendant seeking to warn others of the dispersal areas so that they would violate the order?
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October 12, 2009, 7:43 pmRPT says:
that is, “wouldn’t” violate the order?
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October 12, 2009, 7:43 pmJeff R. says:
If you are resisting or attempting to evade arrest, then what you are doing isn’t civil disobedience. Or at least You’re Doing It Wrong.
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October 12, 2009, 7:52 pmSteve says:
Aren’t you in effect telling people “Obey the speed limit or you will get a ticket?”
I think you’re telling people who are currently breaking the law, “Stop breaking the law for a minute so you don’t get caught.”
If I tell my friend the drug dealer, “Don’t go to that drug buy tomorrow, the cops are going to show up and bust you,” I suppose you could argue that I’ve merely encouraged him to obey the law. But does that really wash?
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October 12, 2009, 7:59 pmloki13 says:
Steve,
What if you changed your question to:
If I tell my friend the drug dealer, “Don’t go kill your wife tomorrow, the cops always catch wife murderes,” I suppose you could argue that I’ve merely encouraged him to obey the law. But does that really wash?
I suppose your example you’re assuming that the drug dealing is an ongoing enterprise, and you are facilitating it by allowing the drug dealer to continue. But what if they decide to stop? IOW, if the value of the police is deterrence of crimes, and your actions deter the crime, does that matter?
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October 12, 2009, 8:09 pmSeaDrive says:
In this situation, a cop asked one of my chums “Who do you think you are, Paul Revere?”
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October 12, 2009, 8:17 pmSteve says:
IOW, if the value of the police is deterrence of crimes, and your actions deter the crime, does that matter?
It matters because the police are not merely seeking to deter crimes along a particular half-mile stretch of highway, any more than their overriding goal is to ensure that no drug deals take place tomorrow. Their goal is to stop crime in general, but of course, they can’t be everywhere at once.
The assumption of my hypothetical is that the drug dealer is going to go right back to dealing drugs the next day. Similarly, when I flash my lights to warn a speeder, I assume they’re going to slow down only until they get past the cop car.
To look at it another way, if my real goal were to induce people to obey the law, you’d expect me to flash my lights whether there’s a cop car or not!
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October 12, 2009, 8:17 pmtjvm says:
It’s quite common for lawyers who practice in tax or regulatory areas to keep track of what areas enforcement agencies are focusing on, and advise their clients accordingly — e.g., “EPA enforcement actions under section X have increased 300% in the last 2 years, so be particularly careful about that.” I don’t see any meaningful distinction between this activity and what’s described in the article, except that the former is a genteel white-collar activity, and the latter is not.
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October 12, 2009, 8:23 pmModa says:
I think the difference is that the lawyer is giving his client prospective advice, while the actor in the article is assisting people who have already violated the law (or are suspected of doing so) in escaping from the police.
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October 12, 2009, 8:28 pmShelbyC says:
Well, suppose my goal is to induce someone to obey the law because I don’t want them to be punished. Maybe that’s wrong, maybe not, but under what circumstances can it be criminal? Its “preventing someone from commiting a crime under cicumstances where they would be caught and punished thereby depriving the state of the deterert value of said punishment” a crime?
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October 12, 2009, 8:29 pmDaniel Chapman says:
I stand by my claim that flashing my lights to warn people about speed traps is completely legal, and I welcome the opportunity to prove it.
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October 12, 2009, 8:32 pmSplunge says:
But what about speech that informs people of how they can craft their speech so that it doesn’t fall afoul of laws against crime-facilitating speech? Is that not facilitating crime-facilitating speech? Look out, Professor Volt!
Ach, clearly the only practical solution is Everything Not Allowed Is Prohibited. Freedom is slavery, comrades!
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October 12, 2009, 8:33 pmShelbyC says:
And if I tell my friend, “Don’t kill your wife right now, there’s a cop looking and you’ll get caught” because I don’t want him to get caught, is that a crime?
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October 12, 2009, 8:33 pmModa says:
How is this even a question? There’s a law that forbids it. That makes it criminal. It blows my mind that this discussion is even continuing.
How it’s illegal varies by states. Some states explicitly make it a crime to warn of an enforcement zone. Some states make it a crime to flash your lights (low-high-low) for any reason.
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October 12, 2009, 8:36 pmModa says:
If he later does kill his wife I’d say you’re obviously an accessory.
Even if he doesn’t, in some states you’d be guilty of accessory to attempted murder, I think.
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October 12, 2009, 8:37 pmDaniel Chapman says:
Which states explicitly make it a crime to warn of a speed trap Moda?
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October 12, 2009, 8:38 pmShelbyC says:
Huh. It’s not obvious to me; can you elaborate? And how’s the blown mind workin’ for ya? Pretty cool, huh?
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October 12, 2009, 8:47 pmtjvm says:
As I understand the article, the defendant was making public updates on twitter, available for anyone to read. He had no way to know whether the people reading it had broken the law or not.
To go back to my earlier example, suppose an environmental lawyer puts together some research on current trends in EPA enforcement — where they’re focusing, where they’re not — and sends it out to 100 clients or potential clients. The lawyer has no way of knowing whether those companies are currently violating any environmental laws. For all he knows, some company who gets his publication might use it to shift their illegal dumping practices and reduce the chance of getting caught. I don’t think the lawyer should be liable for that, but the same logic suggests, at least to me, that the defendant in the cited story should not be liable either (unless there’s something I’m missing about the story).
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October 12, 2009, 8:55 pmPatHMV says:
I don’t see this as a difficult question at all. If the police want to have secure communications, then they can encrypt them. If they broadcast them over the air for all to hear, and somebody wants to relay that information, that’s a very simple First Amendment question, I think.
Now, if the person at Anarchists HQ is telling people where to go to throw a molotov cocktail, that’s conspiracy. If he says “there’s a break in their defenses at 6th and Elm, head over there to get past them and continue breaking the law,” that’s also speech in further of conspiracy. But speaking just to give general instructions about the location of the police? Ridiculous.
Now here’s a tougher question. Anarchist Bill decides to provide real-time police location data, along with more general security analysis of building and other defenses, at the site of an upcoming anti-globalization protest. Bill is a loner; he learned of the protest through published sources, not in specific conversation with anyone. He decided to perform this function entirely independently; he never talked with anybody else about it. He announces that this service will be made available on a public website, without having any conversations with any other person. He does know, from observing earlier demonstrations, that other anarchists will likely use his information to help further criminal activities. Is he guilty of anything? I don’t think so.
Similar situation. Robber John obtains, through legal means, the detailed plans of a bank building and its security features. If he publishes it to the world at large, is he guilty of any crime? I don’t think so. But if he agrees to share it with only one person, with the understanding that that person intends to use that information to rob the bank, is that a crime? There, I think the answer is yes, that’s basic conspiracy law.
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October 12, 2009, 8:56 pmSteve says:
Its “preventing someone from commiting a crime under cicumstances where they would be caught and punished thereby depriving the state of the deterert value of said punishment” a crime?
I don’t think flashing your lights is preventing someone from committing a crime. I think you’re inducing someone to cease an ongoing crime for a couple minutes, at best, so the cops don’t catch them committing that ongoing crime.
We can indulge the fiction that maybe the person will see your lights and decide for some reason to lower their speed to 55mph permanently, but I’m trying to live in the real world here. We all know they’re going to speed up again just as soon as they’re past the cop.
Look, I flash my lights too, but I hardly think I’m preventing crime by doing so. That strikes me as the sort of cutesy argument one thinks one might get away with in court, but seldom does.
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October 12, 2009, 9:17 pmVascillation « Shay 2.0 says:
[...] Today, it’s a post by Eugene Volokh over at The Volokh Conspiracy: Crime-Facilitating Speech and Reporting Police Movements. [...]
Daniel Chapman says:
I’m not indulging in a fiction, Steve. I’m flashing my lights to say “There is a cop up ahead, don’t get caught speeding.” There’s nothing illegal about that.
At least not in my state. I’m still waiting on that guy to tell me which states try to make this an explicit crime.
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October 12, 2009, 9:27 pmbyomtov says:
I stand by my claim that flashing my lights to warn people about speed traps is completely legal, and I welcome the opportunity to prove it.
Me too.
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October 12, 2009, 9:29 pmOff Kilter says:
Seadrive: “In this situation, a cop asked one of my chums “Who do you think you are, Paul Revere?”
I don’t think flashing just once would work...
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October 12, 2009, 9:30 pmProsecutorial Indiscretion says:
Now, if the person at Anarchists HQ is telling people where to go to throw a molotov cocktail, that’s conspiracy. If he says “there’s a break in their defenses at 6th and Elm, head over there to get past them and continue breaking the law,” that’s also speech in further of conspiracy. But speaking just to give general instructions about the location of the police? Ridiculous.
PatHMV: This seems to demand a heavily contextual analysis with a focus to Madison’s intent, and I don’t see enough facts in the article about the guy’s involvement with any criminal activity to reach a determination. From the bare-bones information we get, Madison appears to be heavily plugged in with an organization that appears to have engaged in a number of criminal acts. He believed he was playing an important role: “It was crucial for people to have the information we were sending.” If there’s sufficient evidence to show that he knew his broadcasts were facilitating the evasion of arrest or other criminal activity and he was producing them for that purpose, especially if those crimes were being perpetrated by people he had previously coordinated who belonged to the same organization or association as him (it’s unclear exactly what the nature of his relationship with other protesters was), I don’t think it would be even close to ridiculous to charge him — it would seem quite justified.
In the hypo you give, which I think is a much less prosecutable case than what we’re looking at in the Madison case (again, as best we can tell from the limited facts we have), I think Anarchist Bill’s guilt would depend on his intent. If he was doing it for a legitimate purpose but knew it would incidentally help further criminal activities, he could be ok. If he was doing it because he wanted to facilitate the commission of crimes, he would seem culpable. Now proving Anarchist Bill’s intent in this case could be pretty tough (though I bet the search warrant would turn up all sorts of literature that could help the government make its case), but the epistemological question is separate from the issue of his actual guilt.
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October 12, 2009, 9:38 pmSteve says:
I’m not indulging in a fiction, Steve. I’m flashing my lights to say “There is a cop up ahead, don’t get caught speeding.” There’s nothing illegal about that.
The fiction was that you were doing anything other than telling people to stop breaking the law for a couple minutes. “Don’t get caught” is a more accurate reflection of reality than what was posted previously, but you’re not just expressing a random hope that they won’t get caught. You’re actively providing them with information to allow them to escape punishment.
Maybe it’s legal, maybe it’s not, but you’re doing nothing more than answering the interesting question posed by this post with a conclusory statement.
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October 12, 2009, 9:48 pmloki13 says:
Steve,
Here’s the problem (in my mind, and it’s a little foggy right now). First, I hold speech in high regard, and I’m pretty sure the Bill of Rights backs me up on this one. However, I also understand that there are a few exceptions for crime-act speech, where the speech itself is the crime (think of solicitation for murder, or some conspiracies, but then you get into overt act). Okay... these are examples were the speech is actually the *cause* of a crime. Is there a problem, though, when we begin to criminalize speech that specifically disuades people from committing crime (such as flashing lights, or telling people to not deal drugs that day, or to not kill their wife?). Um, I have a problem with that, and I don’t even need to resort to weird hypos. I don’t think that we should criminalize speech that *makes life more difficult for police officers* (short of incitement to violence, IMMINENT, or somesuch) or otherwise prevents crime for occuring in a manner convenient to police officers. Why? Because speech should be protected unless there’s a damn good reason not to, and “making it harder for the police to get someone in a speed trap” isn’t really a good reason (or at least a damn good reason).
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October 12, 2009, 9:50 pmShelbyC says:
What would you be in court charged with? I understand you’re kinda defeating what the cop is trying to do, but I’m kind of interested in situations where the state claims an interest in creating crime for the purpose of procecuting it. Undercover drug buys and such are another example. For example, to the extent that speeding constitutes harm, I’m preventing the guy from speeding for half a minute. That’s not what I’m trying to do, but that’s the outcome. And is it different if I say, “don’t speed over the holiday weekend, there’s cops all over the place”? How do you draw the line? That’s kinda what I was going for in my wife-killing example, especially if the guy doesn’t kill his wife.
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October 12, 2009, 9:50 pmDaniel Chapman says:
I clarified it because you seem confused. I’m not trying to obscure exactly what I do when I flash my lights. I *am* trying to help them avoid getting caught. Better yet, I do it with the express hope that one day I’ll avoid a ticket myself because they will learn the system and pay it forward.
I’m trying to say it’s not that interesting of a question. If this is illegal, I hope I get caught because I look forward to fighting the charge.
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October 12, 2009, 10:00 pmSteve says:
For example, to the extent that speeding constitutes harm, I’m preventing the guy from speeding for half a minute. That’s not what I’m trying to do, but that’s the outcome.
At the cost of giving the cop an opportunity to catch him and prevent him from speeding for a longer period, sure. You’re not helping society stop speeding, you’re helping the guy get away with speeding.
And is it different if I say, “don’t speed over the holiday weekend, there’s cops all over the place”? How do you draw the line?
The difference is that in one case, you have someone engaged in an ongoing violation and you warn him just before he would have been caught. In the other case, you have someone who might commit a violation, might not. There are some difficult line-drawing exercises but I think the case where you warn someone to stop speeding for just a couple minutes until they pass the cop car is one of the easier cases.
As for what you’d be charged with, I have my doubts that you can be an “accessory” to a traffic offense, but we’re clearly talking about something that resembles accessory liability. If a dirty cop warns a drug dealer about efforts by the cops to bust him, it’s clear that he’s furthering the guy’s attempt to carry on a drug dealing business. It’s hard to imagine a judge or jury that would credit the defense, “I actually prevented illegal drug deals, because he didn’t sell any drugs on the days I warned him the cops were around.”
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October 12, 2009, 10:03 pmSteve says:
Because speech should be protected unless there’s a damn good reason not to, and “making it harder for the police to get someone in a speed trap” isn’t really a good reason (or at least a damn good reason).
Would it make a difference to you if we were talking about a more serious crime? I mean, I think it’s settled that you can have accessory or conspiracy liability based upon mere speech, but you seem to want to throw that category out altogether.
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October 12, 2009, 10:10 pmPatHMV says:
Prosecutorial Indiscretion...
I’m certainly willing to let more detailed facts control the analysis of this specific example. As reported by Eugene, however, the only instructions given were to tell people who had been ordered to disperse where the cops were. I suppose that calling your buddy to tell him that the cops were on their way over to arrest him technically qualifies as aiding and abetting the crime of flight from an officer or flight to avoid prosecution, I would hate to have to actually prosecute it. Such crimes tend to be used only by the police as a threat to obtain better cooperation.
As to your response to my example, do you really think that whether or not Anarchist Bill’s actions are a crime hinges entirely on his intent? That’s just not the law. The Anarchist’s Cookbook is protected by the First Amendment, even if the author or any particular vendor selling it intends or hopes that it will be used to commit violent acts. If Bill publishes his data without actually conspiring with any other person in the process, then I don’t think he’s committed any crime, no matter what his intent was.
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October 12, 2009, 10:23 pmOren says:
You guys must not be looking very hard about this flashing lights question. In the great State of Washington, you may not flash your high beams at anyone. In the somewhat-less-great State of Florida, it is also forbidden.
In my (foolish, no doubt) conception of 1A law, it is perfectly legal for a State to forbid flashing your lights as a general regulation of motor vehicles on the road. They may not make the content-based law forbidding flashing your lights for the purpose of conveying the message that a cop is around the corner. The states of WA and FL, it appears, have done the former not the latter.
[ Incidentally, WA is pretty strict in not allowing you to flick your brights at anyone for any reason, where at least Florida has some exceptions. ]
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October 12, 2009, 10:39 pmDerHahn says:
32.Steve says:
At the cost of giving the cop an opportunity to catch him and prevent him from speeding for a longer period, sure. You’re not helping society stop speeding, you’re helping the guy get away with speeding.
I’ve heard people (one was a lawyer teaching a business law course) brag about getting ‘fast driving awards’. How much of a deterrent do you think speeding tickets are?
I’m comfortable with the idea that speech facilitating the on-going commission of a crime or crimes such as providing updates on police locations so vandals can avoid arrest and continue to destroy property or loot can be punished. Wouldn’t this fall under the concept of accessory after the fact?
I’m less comfortable that speech which causes people to obey the law, however briefly, can be punished.
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October 12, 2009, 10:49 pmOren says:
Virginia too, btw.
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October 12, 2009, 10:56 pmOren says:
That’s no fun. Please engage in series of hypothetical examples that prove nothing followed by suggestions on how the doctrine might change to accommodate those scenarios.
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October 12, 2009, 11:00 pmSteve says:
Let’s say my friends decide to rob a bank, and my sole role is to warn them if I see the cops coming, so they can flee the scene. This is a classic case, and I would have thought it obvious that the First Amendment doesn’t protect me. But are the commentors in this thread troubled by the possibility that I could be punished for speech that causes my friends to stop their crime? Shouldn’t society encourage criminals to abort their crimes?
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October 12, 2009, 11:10 pmbellisaurius says:
Gosh, and here I thought the main purpose for flicking lights was to tell the guy in front of you that it was clear to pass.
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October 12, 2009, 11:13 pmFub says:
Classical police tactic at demonstrations in the 1960s was to surround demonstrators, allow no means of egress or dispersal, then bullhorn an order to disperse.
If protestors tried to leave, they’d have to go through a police line and police would beat them to a pulp and arrested them.
If protestors didn’t try to leave, police would move in closer, beat them to a pulp and arrest them.
It was win-win for control freaks. You could beat up demonstrators no matter what they did or how peaceably assembled they were.
That’s more than slightly nuts. When I learned to drive in the 1950s, flashing lights from low beam to high beam and back was taught as the correct response to an approaching vehicle which had high beams on. The purpose was to warn “you’re blinding me, use your low beams.”
Now, I suppose in WA and FL you’re just supposed to be blinded and the jerk with high beams gets a medal for not “flashing” his lights to low beam when approaching traffic. If you simply pull off onto the shoulder until the jerk passes by and you can see again, they’ll probably ticket you for that too. Another win-win for control freaks.
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October 12, 2009, 11:13 pmSuperSkeptic says:
What does it say about the state of the law, or speeding laws in particular, that we all (don’t quibble, maybe you’re a grandma, but most of us aren’t) break them and encourage others to do so too?
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October 12, 2009, 11:14 pmOren says:
Fub, I did not endorse the law as proper or wise, I only linked it to show that it exists. Please do not conflate citation with support.
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October 12, 2009, 11:29 pmPatHMV says:
Oren, as I read the Florida statute, it prohibits having flashing, police-type lights, not a brief low-high-low flash. The statutes from the other states likewise do not appear to me to specifically prohibit such a brief flashing; they’re just general requirements saying “when you get close to the on-coming cars, dim your lights.” If I’m missing something, please indicate the exact language you think bans the brief low-high-low flash, or the brief flicker of off-on-off done during the daytime.
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October 12, 2009, 11:38 pmLib says:
I don’t think so. If the officer had observed the crime of “excessive speed” (or had another means of having sufficient evidence of the crime), the officer could still issue a ticket for the crime already committed — flashing my lights didn’t change this. The next mile the speeder drives at high speed is a different crime that an officer might, or might not, observe and act on. By flashing my lights I, being a good citizen, prevented a second crime — I should receive a commendation for that, not a hassle.
I would agree with your assessment if I knew that the speeder had already been clocked by radar and I took actions to help her avoid being pulled over by an officer at a fixed checkpoint ahead. For example, if my warning caused the speeder to take a turn on a side road and dive across a railroad track just before a long freight train so she couldn’t be apprehended by the police for the crime already committed and observed and I reasonably expected her to take such evasive action based on my warning.
Consider if I successfully convince someone to give up illegal drug use by explaining that there have been a lot of cops around and, in fact, the person does give up drugs for a few days. During the period where he abstained from using and carrying drugs, he gets stopped and searched by the police who find nothing. Am I then guilty of the crime of “warning” if the guy later resumes using and carrying drugs a week later but not if he doesn’t resume the illegal behavior? Such an attitude is going to make it much more difficult to recruit people to staff drug treatment outreach programs.
[Yes, I should actually slog through at least the short version of Eugene’s Slippery Slopes paper :)]
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October 12, 2009, 11:39 pmjosh bornstein says:
Steve,
I think you would not be charged with the actual warning. I think you would be charged with the original conspiracy, as well as being an accessory to the commission of the crime. (Your role was to sit outside in your car, and to warn your friends if a cop came by. You’d be nicked, even if you swallowed a hot dog at the wrong moment and could not verbalize an audible warning, or got scared and walked away, etc..)
Now, if your above hypo was going on, and I walked by, saw what was going on, and said, “Hey you guys! You’d better stop . . . a cop-car is turning onto this street.” Would I be guilty of something? I don’t think so. (Well, except for dreadfully bad taste and quite poor social manners.) But not a crime. (Maybe my answer would be different if I lived in one of those Good Samaritan locales. I know nothing about those laws and what they do/do not ciminalize.)
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October 13, 2009, 12:14 amSteve says:
The next mile the speeder drives at high speed is a different crime that an officer might, or might not, observe and act on.
So if the cop observes you speeding for two miles, can he issue you two tickets for the two separate crimes? Sheesh, not only is this yet another fiction, it’s not even a good one.
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October 13, 2009, 12:25 amSteve says:
I think you would not be charged with the actual warning. I think you would be charged with the original conspiracy, as well as being an accessory to the commission of the crime.
But when you say it’s okay to punish me for conspiracy or accessory, you’re assuming the conclusion of this whole discussion. My entire role in the scheme is one of speech. But for that role, I’d merely be someone who knew about the planned bank robbery.
Now, if your above hypo was going on, and I walked by, saw what was going on, and said, “Hey you guys! You’d better stop . . . a cop-car is turning onto this street.” Would I be guilty of something? I don’t think so.
One reason the speeding example is actually one of the easiest cases, at least in my view, is that if you acted like this you’d at least be stopping the in-progress bank robbery. Yes, maybe the robbers would escape to rob another bank, or maybe not, who knows. But in the speeding case we all know the entire purpose of the warning is so the other driver can slow down for just long enough to avoid a ticket.
Let’s change the bank hypothetical slightly. Say these guys walk into the bank, and you realize they’re there to rob it. So you walk over to them, and whisper, “Hey guys, that man finishing up his business at the teller window is an undercover cop.” So the robbers wait for 5 minutes, the cop finishes up and leaves, and they proceed to rob the bank.
Are you criminally culpable for assisting in the robbery? Seems plausible to me! By the logic of some commentors here, though, not only are you not culpable, but you should get a medal for preventing 5 minutes worth of bankrobbing through your timely warning. The fact that the robbers went on to rob the bank 5 minutes later is a completely separate and fortuitous crime, for which you surely cannot be held responsible.
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October 13, 2009, 12:35 amOren says:
There is no general principle that makes a brief violation of the law. If the speed is 55, you may not go 56 for any length of time. If the law says you must dim your lights, you may not use the brights
RCW 46.37.230(2) states (in unbelievably obtuse language, paraphrased, original ).
I read this to mean that if there is an oncoming vehicle within 500 feet, you may not use your high beams.
Perhaps the time limitation in (1) makes this apply only at night, the statute is somewhat unclear on that.
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October 13, 2009, 1:42 amsubpatre says:
Oren says: “Fub, I did not endorse the law as proper or wise, I only linked it to show that it exists. Please do not conflate citation with support.”
Apparently we can’t conflate citation with truth either. The Virginia and Washington laws you linked to have no mention of momentary high beams or flashing of lights; they mandate using low beams to avoid blinding other vehicles. The Florida statute regulates lights that flash: flashing red lights, blue lights, amber lights, even flashing turn signals; not the use of headlights as a once or twice ‘flash’.
With no experience in Washington (calling Whit IIRC for practices there), I can assure you that Florida and Virginia both have a long, long precedent in allowing flashing of headlights as communication of the other drivers’ highbeams being on.
In Virginia high beam flash is also a means of communicating that the vehicle is attempting to ‘overtake’ (pass) the other vehicle.
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October 13, 2009, 2:00 amloki13 says:
Steve,
I think you’re looking for the “overt act” requirement I referenced above. It is not enough to think about, or talk about (eh.... I’ll leave that there for now, it is late) a crime. Conspiracy requires an overt act in furtherance thereof. At least, that’s what I remember from the blackletter on inchoate offenses. It was a while ago.
So in your first bank example, the person was part of a conspiracy to rob the bank. The warning was superfluous; he probably was guilty when they were casing the joint (there’s an old New York case about this).
As for you second hyp, I am way too tired.
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October 13, 2009, 2:06 amLib says:
If an officer observes the speeder in the first mile, they are free to ticket away (and probably will) independent of if the speeder slowed down later in response to flashing my lights. If the officer thinks he can write a second ticket for the second mile had I not flashed my lights, well, that must have been a second crime so I prevented a crime, else I didn’t and had no impact on the speeder being brought to justice for crimes the officer observed.
Is one speeding ticket per life all one can get in a jurisdiction? There have to be some limits on how long immunity lasts after an officer observes someone speeding. Admittedly I was (and continue to do so) pushing the envelope a little on this and perhaps there’s well settled statutory or case law that would distinguish one “count” vs. two “counts” in the case of, for example, violating California’s Maximum Speed Limit law (section 22356 of the CA vehicle code).
Suppose a speed camera (assume they exist on this roadway) catches me driving 85 MPH on Highway 5 at the south end of California’s Central Valley and another one catches me driving 85 MPH on Highway 5 at the north end of the Central Valley 300 miles away four hours later. Also assume the speed limit the entire distance is 65 (it’s not, but that’s a reasonable simplification). Suppose I admit guilt to the “south end” offense when I get the ticket in the mail. Will I be declared “Not Guilty” in the “north end” case unless the People can prove I dropped below maximum speed limit sometime during those four hours (I could have either driven a constant speed of 75 MPH or I could have been varying my speed from 64 to 86 MPH repeatedly for three hours)? Perhaps...
If not (and assuming the judge was correct), was it crossing different jurisdictions that mattered? In which case, I don’t know if the speeder I flashed my lights at is about to cross a jurisdictional boundary and commit a “new” crime — in which case I’ve prevented a heinous crime, not interfered with its detection or prosecution.
If slowing down to a safe speed is enough to result in two distinct crimes, how do I know the speeder without my input won’t drop below the speed limit on their own and maybe, or maybe not, drift back above the speed limit before she reaches a point the officer can observe him? Actually, how do I even know for sure that the person is currently committing a crime unless her speed is way out of line and/or I’m a highly trained observer of vehicle speeds? Again, seems I’ve prevented a heinous crime, not interfered with its detection or prosecution.
Suppose I’m pulled over and ticketed for exceeding the maximum speed and, remaining in the same jurisdiction, pull away from the traffic stop and resume my excessive speed. Does the officer just have to watch me do it since I’ve already violated the law once? Again, is the reason it’s two offenses that I stopped speeding and later resumed speeding? If so, back to me flashing my lights, I have no idea if the driver would have dropped below the speed limit anyway in the absence of my input so my goal is to prevent a second crime from occurring later.
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October 13, 2009, 2:22 amseattle law student says:
I break this law all the time, apparently. Usually to let people know that their high-beams are on. (seems like a lot of trucks have those halogen low beams, which are the equivalent of regular high beams).
non-related note — I wish in WA we had a “wipers on = lights on” law, like other states.
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October 13, 2009, 2:24 amSteve says:
So in your first bank example, the person was part of a conspiracy to rob the bank.
But he’s not guilty of robbery, even though he was the lookout while his friends robbed the bank? Just trying to figure out if you would criminalize his speech-only role in the robbery itself.
If we’re reasoning from first principles, as opposed to studying for the bar exam, then I really don’t understand how you can take such a firm position against criminalizing speech yet be just fine with theories of conspiracy liability that do little more than criminalize speech. I wouldn’t hang my hat on the overt act requirement since there was no such requirement at common law and there is no constitutional requirement for penal statutes to include such a provision today. See U.S. v. Shabani, 513 U.S. 10 (1994). In addition, even where an overt act requirement does exist, typically only one member of the conspiracy must commit such an act. See, e.g., 18 U.S.C. 371. So our lookout may be faced with criminal liability for nothing but speech.
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October 13, 2009, 2:30 amSteve says:
In which case, I don’t know if the speeder I flashed my lights at is about to cross a jurisdictional boundary and commit a “new” crime – in which case I’ve prevented a heinous crime, not interfered with its detection or prosecution...
This is all so pedantic I can only express my fervent hope that you are simply arguing for the sake of argument. There’s actually sort of a litmus test here to determine who is living in the real world and who isn’t.
Real World — When I flash my lights to get a speeder to slow down for 60 seconds because there’s a cop ahead, I’m trying to help them avoid getting busted. Maybe they’d do the same for me someday.
Unread World — When I flash my lights to get a speeder to slow down for 60 seconds because there’s a cop ahead, I’ve prevented 60 seconds of heinous criminal activity! Society should thank me!
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October 13, 2009, 2:42 amGene Madison says:
You know what really blows my mind? That people can make a statement like this, but don’t realize that the Federal Constitution is the Supreme Law under the Jurisdiction so constituted, and is the will of the people, which neither federal nor state governments, whether together or alone can defy, yet.. They do... over and over.. inflicting hardships on people for their personal benefit.
One of the problems with criminalizing an act that infringes upon peoples liberty, is that there is no Justice to be had by any punishment. Having caused no hard, inflict any injury or loss upon any other person, what restitution is to be paid, and to whom? The State? Law Enforcement Pension fund?
When Paul Revere was shouting “The British are Coming” it was (if I am recalling correctly) to wake up Samuel Adams and forget the other.. and if they were found, they’d likely lose their lives. So ultimately, I guess it really comes down to: If the laws are written to restrict a God given right, contrary to the principles of liberty & Natural Law, the question to be asked is, who was harmed or what property was damaged from their actions?
I don’t believe there is anything wrong with anything any one does, until their actions inflict harm upon upon others, which was to be the entire point behind having a Justice system, and being governed by a rule of law?
Many Law Professional I have met in the last few years seem so absent minded. Their knowledge seems to be more focused on finding precedent, and allowing that to guide their case. One would think that they could debate the principles without turning to precedent and someone elses opinion or argument.
This isn’t intended to be offensive to anyone who has blogged on this site, but I think we can all agree that just because you practice law, doesn’t mean you understand it. So what happens when ignorant people teach the next generation? Something gets lost in the translation i’m sure.
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October 13, 2009, 2:56 amMike McDougal says:
I can never win.
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October 13, 2009, 3:00 amMike McDougal says:
The Washington and Virgina statutes say NOTHING about flashing lights. You’re simply assuming without good justification that flashing one’s high beams must occur within within the prohibited space in order to serve a communicative function. You’re flat out wrong. And I think you’d have a tough time establishing a single use of one’s high beams as being a “[f]lashing light[]” under subsection 7 of the Florida statute. That is particularly true given that “flashing lights” typically refers to lights that continue to flash by design without human intervention after they are actuated. That interpretation is bolstered by the rest of the statute, which refers to just that type of light commonly found on police cars, wreckers, etc.
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October 13, 2009, 3:12 amFrater Plotter says:
As Fub noted above, sometimes the police do not behave entirely in accordance with law or justice when in the vicinity of demonstrations or protests. Just as other men and women under arms (soldiers, prison guards, militia members) occasionally abuse the power of their position, so do police.
Indeed, in the case of police response to demonstrations, the notion of a “police riot” is well-documented. In a police riot, the readiness of police to engage in violence to maintain civil order becomes separated from that underlying purpose, and becomes merely willful violence. The actions of members of the police in a police riot cease to be law-enforcement and become, instead, lawbreaking.
Given the above, there are certainly circumstances in which a person communicating to demonstrators the locations of police would not be acting to protect or promote the commission of crime — but rather, helping citizens (the demonstrators) avoid the violence of law-breaking police. Such a person should be praised by the law-abiding; since police engaged in a police riot are incapable of enforcing the law against one another, it is best for everyone to keep well out of their way!
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October 13, 2009, 3:49 amEricPWJohnson says:
David Chapman
You want the opportunity to prove here it goes
when you take the stand the jury will most likely hear this
The State: “Mr. Chapman did you observe the police conducting an important public safety enforcement measure?”
David Chapman: “Yes I did”
the State: “Mr. Chapman are you aware of the NTSB report and dozens like it that excessive speed is the leading cause of road fatalities and accidents in the United States”
David C: (well it dosent really matter if you answer yes — but you should answer no)
The State: So you observed the police protecting and serving the public yet you chose to purposely aid those currently breaking the law and thereby placing the public at risk, by deliberately interfering with the law and public safety enforcement officials?
So David — you see where this is going in Texas, Oklahoma, Louisiana its common for truckers who do this on CB or with their headlights to be jailed.
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October 13, 2009, 4:22 amDaniel Chapman says:
First of all, my name is Dan. Not sure why everyone who gets my name wrong calls me David, but that’s my brother. Secondly, the case would never get to a jury.
Finally, on an unrelated note, what’s the deal with this discussion of people flashing their high beams? I flick my lights off and on because USUALLY when you spot a speed trap on the interstate it’s during daylight hours.
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October 13, 2009, 7:16 amBrett Bellmore says:
Ah, but that’s a fantasy, the state doesn’t allow witnesses to correct any lies it incorporates into leading questions.
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October 13, 2009, 7:25 amsubpatre says:
To seal the lid on Oren’s claim that “it’s prohibited” to flash your headlights, here is further from one state he cited :
Emphasis added. In one district civil case, a car passed a tractor, which turned left and a collision ensued. The vehicle’s defense was they had flashed their lights prior to passing. The ruling relieved the vehicle of guilt, but liability remained because the light wasn’t enough ‘signal’.
There may be some state that prohibits alternating your headlights, turning your running lights on and off, or signaling other vehicle ‘to assist in evading the law’. IIRC there were some laws to that effect —rapidly struck— related to use of two-way radios; but nobody has cited them yet.
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October 13, 2009, 7:49 amjpe says:
Found a case in NY (Lauber v NY) in which the supreme court (NY’s trial court, hearing an appeal in this instance from a municipal court) ruled that the defendant was wrongly given a ticket for flashing her lights to warn of a speed trap. NY has a law prohibiting the use of high beams that’s substantially identical to those discussed above; the court noted that the warning was “unwise” but not prohibited by law.
When I was a kid in OH, I was ticketed for flashing my high beams to warn of a speed trap; unfortunately, the car I warned was a patrol car. When I protested, the cop claimed that it was illegal to do so in OH and other states like NY. Looks like he was wrong on both counts. Too bad I’m time-barred from bringing a civil suit....
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October 13, 2009, 8:46 amConnie says:
What will they charge you with for flashing your lights? That’s easy–disorderly conduct, the catch-all for when you’re doing something a cop doesn’t like (see case in Iowa, hanging flag upside down).
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October 13, 2009, 8:52 amEricPWJohnson says:
Dan
Dare you to do it in Oklahoma
Double Dare you!
Triple quadruple dare you and yes it would go to a jury trial because its a felony
automatic in okie land
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October 13, 2009, 9:32 amrick.felt says:
There was an appellate case recently — discussed on Volokh — about an attorney who argued that his client’s conviction (confession?) should be overturned/excluded because he was engaged in civil disobedience. One of the appellate judges explained to the lawyer that civil disobedience involves breaking the law and willingly accepting the punishment to show the injustice of the law, and that being unwilling to be punished isn’t really civil disobedience at all.
It’s one of the things that irritates me about people who handcuff themselves to the White House fence or engage in some other forms of trespass or disorderly conduct for the sake of their cause. They’re not breaking an unjust law; they’re breaking a perfectly just law with no connection to their cause. I’ve never felt moved at all by any of those antics.
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October 13, 2009, 9:36 amrick.felt says:
In nearly every car I’ve ever driven, the high beams could be activated by pulling the lever for the directional signals towards the driver. It could be pulled all the way back to lock it in position, or it could be pulled partway, at which point it would spring back into its original position when released. This worked even when the headlights were off.
Turning the lights on and then off required more of an effort: one motion to turn them on, and the opposite motion to turn them off.
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October 13, 2009, 9:42 amPatHMV says:
EricPWJohnson, do you have a citation to the Oklahoma law which makes this a felony? Oren is quite wrong in his interpretation of the statutes he cited. “Flashing” does not mean a single flash. The law is not quite the literal monster he seems to envision.
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October 13, 2009, 10:03 amSteve says:
Triple quadruple dare you and yes it would go to a jury trial because its a felony
A felony!!!! Holy moly.
Perhaps when Texas executes an innocent man who was accused of flashing his high beams, we will achieve VC Critical Mass.
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October 13, 2009, 10:07 amOren says:
I’m sure they do. I’m sure they also have a long precedent of letting drivers go 56 in a 55 zone. Nevertheless, “you shall use low beams” means precisely what is says.
The rest of the clause that I cited refers to turn signals — commonly found on all cars.
And “robbing” does not mean a single robbery.
I’m not arguing in favor of police officers suddenly enforcing this law any more than I’m arguing in favor of writing 56-in-a-55 tickets. Both seem to be on the same level of illegality.
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October 13, 2009, 10:32 amOren says:
Gene, there is little question that a non-content-based law that prohibits flashing lights (leave aside whether the statute does, I’m done arguing about that — just suppose that a statute does) while in a vehicle comports with the First Amendment.
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October 13, 2009, 10:40 amPintler says:
Stupid question — how do you tell who just broadcast a CB warning? It seems like a difficult charge to prove.
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October 13, 2009, 10:54 amShelbyC says:
Well, just because people are routinely jailed for doing something in those states doesn’t mean that something isn’t constitutionally protected.
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October 13, 2009, 11:27 amShelbyC says:
How do folks see the 1A issues here? Somehow I see a difference between supressing speech in order to prevent helping someone commit a crime, and suppressing speech in order to ensure that someone continues commiting a crime so he will be caught.
As far as the accessory thing, if I flash my lights at a speeder, and he slows down and doesn’t speed back up, am I still an accessory? Or am I only an accessory to any speeding that occurs after I flash my lights?
And for the light flashing under any circumstances law, isn’t the test whether or not the law was intended to suppress the communicative aspects of light flashing, and if so whether or not that communication was constitutionally protected?
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October 13, 2009, 11:39 amJMA says:
rick.felt, Dan Chapman:
I’m guessing the discussion is on high beams because they have been singled out in the statutes in question. The fact that they are not easily distinguished, in daytime, from any other sort of headlight is probably as good a reason as any to ignore the possibility that a person has flashed ordinary headlights instead of high beams when one seeks to replace revenue from lost speeding tickets with revenue from a headlight-flashing ticket.
Edited to add: I don’t know who wrote such a cynical thing here under my name. I will have a talk with my evil twin.
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October 13, 2009, 12:29 pmDavid Nieporent says:
I think Moda’s distinction here is the right one (although I disagree with other comments he has made.)
Telling people how to escape capture for committing a crime is and should be illegal, whether before the fact (“The side door’s alarm doesn’t work, so you can burgle the place secretly”) or after the fact (“The police are coming up the front steps; quick: destroy the evidence.”)
But telling people to avoid committing the crime in the first place is not illegal, even if, as a result, they commit the crime at another time and place so they won’t be caught.
Flashing headlights to warn of a speed trap, no matter how much Steve dislikes the argument, falls in the latter category. They’ve already been speeding; slowing down doesn’t prevent the police from ticketing them for that crime. All it does is cause them to stop breaking the law, at least temporarily.
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October 13, 2009, 12:36 pmJohnKT says:
I don’t know if this is true, but my understanding is that it is illegal in Texas to flash one’s lights to warn another motorist of a speed trap. And Lord, we have speed traps!
Prof Volokh, and the commenters here, I found this example totally confusing. I think there was one cite in the paper to a lower court accepting a free speech defense for light flashing.
Is this a free speech issue, or is it not?
And in my area at least, the purpose of speed traps is more revenue enhancement than law enforcement. Perhaps warning of a speed trap is interfering with an officer in the performance of his duty of revenue enhancement.
I daresay the law enforcement angle to speed traps is sometimes doubtful.
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October 13, 2009, 12:38 pmFub says:
I didn’t. I commented on the law. I think the law is more than slightly insane.
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October 13, 2009, 12:48 pmOren says:
Assuming that the law is like the one in WA (if you don’t believe my reading, pretend that WA passed a law in conformity with my reading) and prohibits any flashing of brights at another vehicle. Then the test of whether it is permissible despite the incidental restriction on speech is (quoting O’Brien)
(1) Regulation of road safety is clearly within the powers of the various State governments.
(2) The interest of the government in road safety is substantial.
(3) The interest of the government in road safety is unrelated to the incidental suppression of speech here — they are not suppressing brights because they impede with law enforcement, they are supressing all usage of brights whatsoever because they might tend to blind other drivers.
(4) The suppression of speech here incidental to the safety concern is no more broad than essential — it prohibits only such speech that might tend to blind other drivers and not other such speech (such as waving or rolling down your windows and hollering) that does not impinge on that right.
I welcome, of course, any criticisms of my analysis here.
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October 13, 2009, 3:09 pmOren says:
Depends what you mean by issue. I suggest you read the case I quoted just above this post, United State v. O’Brien.
In that case, it was conceded that O’Brien’s activity was both conduct and speech at the same time — that is, it was expressive but it was not purely expressive. In other words, it was a free speech issue. On the other hand, the Court ruled that the statute was an acceptable restriction of free speech because it was content-neutral and not overly broad. Consider it in analogy to a law prohibiting protesters from marching through residential neighborhoods at 2AM with bullhorns — surely such a law prohibits some speech, but most everyone agrees that this is an acceptable restriction.
The same analogy applies here — if the State makes it specifically illegal to flash your brights in order to convey a particular message, that fails the test in O’Brien (just like they cannot make it illegal to protest a particular cause). On the other hand, if the law is general and simply says you cannot flash your brights (and presuming the government has a legitimate interest in the matter), then I believe that such a law passes the O’Brien test.
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October 13, 2009, 3:13 pmDilan Esper says:
I would just apply Brandenburg v. Ohio to these situations. If the speech is both highly likely to further illegal conduct and is specifically intended to do so, it’s unprotected. Otherwise, it’s protected.
And I would add the proviso that telling people to act LEGALLY because the cops are around, or to disperse from areas where they are going to be ordered to disperse from, is not furthering illegal conduct at all.
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October 13, 2009, 3:15 pmOren says:
Well, I imagine that all the peace officers in our fine country have enough sense to regularize the insanity.
Also, I didn’t catch this statement in your original post.
No, he gets a ticket because he violated the law that says he shall drive with his beams on the lowest setting when there are other cars nearby.
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October 13, 2009, 3:18 pmOren says:
Well, depending on whether they use that advice to simply move to another area to commit their crime (disorderly conduct, disrupting the peace, impeding the flow of traffic on a public road, ...).
But the speaker does not know what they will do, so I don’t know how this applies in practice.
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October 13, 2009, 3:23 pmDilan Esper says:
Well, depending on whether they use that advice to simply move to another area to commit their crime (disorderly conduct, disrupting the peace, impeding the flow of traffic on a public road, …).
That’s not hard to deal with under Brandenburg. You’d just need to show that the speaker intended that his or her listeners would be able to move so that they could continue to commit crimes without being caught, and that the speech was substantially likely to accomplish that.
The whole point of Brandenburg is to make incitement a crime of SPECIFIC intent– you have to knowingly further the crime, and do something that actually does further it. That ensures that people aren’t swept into the dragnet just because they say something that might assist a criminal.
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October 13, 2009, 3:28 pmDaniel Chapman says:
Again, I don’t think I’ve ever flashed my HIGH beams at people. Usually it’s during the day (you know, when you can SEE the cops), and my lights are off. I turn them off and on repeatedly. I just did it a few hours ago driving back from court, actually.
Someone want to cite this felony statute from Oklahoma? Then explain to me why felony charges MUST go to a jury trial in OK? That seems incredibly wasteful, but I’m guessing that guy doesn’t know what he’s talking about.
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October 13, 2009, 3:32 pmRT says:
Neither one of those links has anything about manually flashing lights. The Florida one appears to be only for lights that are automatic and repetitive.
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October 13, 2009, 4:35 pmUVA 2L says:
This might be of interest to commenters:
http://www.virginialawreview.org/articles.php?article=89
A national-award-winning note by then-student, now-Professor Leslie Kendrick at Virginia Law entitled “A Test for Criminally Instructive Speech.”
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October 13, 2009, 7:44 pmOren says:
The WA statute says “Drivers shall keep their lights on the lowest setting when another car is nearby”.
If you want to insist law permits them to operate their lights on any other setting other than lowest for any amount of time, go ahead. To my reading, it’s quite clear — you must keep it at the lowest setting whenever another vehicle is close.
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October 13, 2009, 9:13 pmProsecutorial Indiscretion says:
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October 13, 2009, 11:04 pmDaniel Chapman says:
Again... so what? Why is everyone so hung up on the hi-beams thing? So far I think I’m the only one who admits to doing this on a regular basis, and I NEVER flash my brights at anyone. It’s a straw man.
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October 14, 2009, 12:19 amFub says:
Yeah, nothing beats insanity becoming citizens’ regular expectation of police behavior.
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October 14, 2009, 12:52 amLargo says:
For those of you discussing DNR/DNT, I point you to my earlier comment in this thread. It’s a bit long, so you might all have skipped it. It addresses some of the issues that were subsequently raised.
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October 14, 2009, 5:15 amLargo says:
Sorry — wrong thread.
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October 14, 2009, 5:16 amDavid Schwartz says:
Perhaps if you specifically flash your lights at someone who appears to be speeding, but what if you flash your lights at every car you pass and make no attempt to determine whether they’re speeding or not? At least when I do it, the message is “I don’t care whether you’re speeding or not, but if you speed on the stretch ahead, you’re going to get a ticket”. It is just as much “don’t start speeding” as “stop speeding”. I don’t discriminate among the recipients.
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October 14, 2009, 11:01 amOren says:
You really don’t think the State can criminalize blinding every driver you see on the road, regardless of what putative message you mean to convey?!
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October 14, 2009, 1:21 pmShelbyC says:
There’s alot of hypo-fighting going on. Can we stipulate what whatever light-flashing is going on isn’t illegal or harmful for reasons other than the fact that is is communicating the existance of a speed-trap?
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October 14, 2009, 2:37 pmOren says:
We could, but my point centers on the fact that it is often illegal to flash your brights irrespective of the reason (communicative or otherwise). That is, this is a classic O’Brien case in which the government regulates (potentially) expressive conduct.
If we stipulate that the light-flashing would be legal, then I agree wholeheartedly (and I wrote so more than a week ago) that it cannot be made illegal based on the content of the expressive message.
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October 14, 2009, 5:30 pmDavid Schwartz says:
So if I start a delivery company hoping that I’ll help some people deliver illegal drugs, I’ve committed a crime? Even if my actions are indistinguishable from actions that I would have taken without that intent? That sounds like a pure thought crime.
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October 15, 2009, 6:09 amOren says:
Ahem?
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October 15, 2009, 9:44 amDavid Schwartz says:
If the ordinary, reasonable and expected results of action X are Y and Z, and it’s legal to perform X if you intend Y but consider Z collateral damage, but illegal to perform X if you intend Z but consider Y collateral damage, that’s a pure thought crime.
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October 15, 2009, 2:05 pmhazemyth says:
Does anyone know the letter of this law? Does it proscribe particular instruments (such as weapons) or does anything used in the course of a crime become, de facto, an ‘instrument of crime’, regardless of whether or not it is normally contraband? If it’s the latter, doesn’t the law become a sort of backdoor double indemnity?
‘Criminal use of a communication facility’ has a similar ring. If it weren’t for the first charge, none of the subsequent charges would have meaning. So, really it’s one crime and not three.
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October 16, 2009, 5:14 amOren says:
Absolutely not.
For instance: X=“Give David Schwartz CPR”, Y=“Save his life”, Z=“Break his ribs”.
It’s obviously legal to give you CPR to save his life, even if I accidentally break your ribs in the process. Conversely, it’s obviously battery if I give you CPR with the intent of breaking your ribs.
Conflating a mens rea requirement for a law restricting some conduct (essentially making the conduct only if done in a particular frame of mind) with criminalizing the frame of mind itself is absurd.
Of course, if you’d like, you can petition the legislature to make all crimes into strict-liability crimes. That would be an unmitigated disaster.
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October 16, 2009, 12:31 pmOctober 23 roundup says:
[...] Is it against the law to report police movements on Twitter? [Valetk, Law.com; Volokh] [...]