Should ignorance of the law be an excuse for LACs like it is for LEOs/LEAs?

skidmark · Mar 24, 2015

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2584034

Abstract:
In this article, I will examine the doctrine of ignorantia legis, or presumed knowledge of the law, as it functions in the current milieu of American criminal justice, the age of the regulatory crime. Much ink has been spilled over this doctrine, and many pieces argue against ignorantia legis, hinting at normative values of fairness and economic efficiency. With this article, I intend to formalize and synthesize these discussions, approaching the problem explicitly from both perspectives. As a framework for evaluating the doctrine, I will apply both Lon Fuller’s idea of “internal morality of the law” and general principles of economic analysis of law. While I do not subscribe completely to either view for all purposes, my intent is to demonstrate that the current application of presumed knowledge of the law is extremely troublesome under at least two distinct methods of evaluating law, indicating a strong need for reconsideration of the doctrine. Part II of this article gives an overview of the doctrine of presumed knowledge of the law in the context of the regulatory state, ultimately arguing that it pervades the current legal system. Part III contains the two critiques of the doctrine based on Fuller’s “internal morality of the law” and on the economic analysis of law, determining that the current application of ignorantia legis is suspect under both. Finally, the Article concludes by synthesizing these arguments and offering a few thoughts on the doctrine moving forward.

Number of Pages in PDF File: 30

Written to address Business (both Big and Small) but IMHO has tremendous applicability to RKBA through the compliance with the maze of laws and regulations governing the exercise of that right.

In this regard the only thing missing would be a discussion of the dichotomy of law enforcement not being held accountable for knowing and adhereing to the law. Depending on how this goes forward regarding Business (both Big and Small) it could be the framework to build the case for law enforcement being held to the same standards as those who try to navigate the maze in order to remain compliant with the law.

If you have not yet read Glenn Reynolds' Ham Sandwich Nation http://columbialawreview.org/ham-sandwich-nation_reynolds/ I encourage you to do so as soon as you can.

stay safe.

Fallschirjmäger · Mar 24, 2015

It either should, or there should be no 'excuse by way of being a professional'. LEO's are not required to take any action on anything that they do not know is illegal, and maybe not even then. If an officer is unsure of the legality of something then he shouldn't be making an arrest.

Citizen · Mar 24, 2015

Fallschirmjäger said:
It either should, or there should be no 'excuse by way of being a professional'. LEO's are not required to take any action on anything that they do not know is illegal, and maybe not even then. If an officer is unsure of the legality of something then he shouldn't be making an arrest.

In fact, as recently as 1968 the US Supreme Court quoted:

No right is held more sacred, or is more carefully guarded, by the common law than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. Union Pacific Rail Co vs Botsford, quoted in Terry v Ohio.

Lets have another look. No right. More sacred. More carefully guarded. Free from all restraint. Free even from interference. Unless by clear and unquestionable authority of law.

In fact, if you have a look at Terry v Ohio, you will see the court prefaced the above quote by saying, "For, as this court has always held, (No right is held...)" italics by Citizen. The US Supreme Court at that point had always held...

Fallschirjmäger · Mar 24, 2015

"I'll just arrest 'im and let the courts decide the matter. If he's innocent, no harm, no foul."

Citizen · Mar 24, 2015

Should ignorance of the law be an excuse for LACs like it is for LEOs/LEAs?

Why, of course, government must invent the doctrine ignorantia legis. How else are they going to enforce a zillion little ordinances and regulations without it?

While, at times, it might be a legitimate rebuttal by a judge--which defendant can honestly claim they didn't know rape, murder, arson, burglary were illegal--like everything else government touches, presumption of knowledge of the law has been distorted all to heck by government. To government's lopsided advantage of course.

Listen, any government that is willing to give police the power to seize your property for keeps if the police can come up with a plausible-sounding reason to suspect it was connected to drug-dealing, that government is guaranteed to misuse ignorantia legis and pretty much any other doctrine it comes up with. The same people (government) who go along with asset forfeiture being put into the civil category in order to avoid having to prove you are guilty under the more stringent due process of criminal law are the same gang who espouse ignorantia legis. Does anything more really need to be said?

Its just a game to win an argument. "You are guilty of breaking this dumb law. You should have known it was illegal. And, even if you didn't know it was illegal, we are going to assert and assume you did because...well, because we have the guns and we can." The more people who they can dupe into believing ignorantia legis has more broad applicability than it really does, the better. It means those people have already conceded government's argument.

Sadly, even on this forum, I can recall posters saying "ignorance is no excuse" when some peaceful guy broke a gun law without realizing it and then told his story here. Those posters were perfect examples of otherwise rights-minded folks who had fallen into government's argument. Rubbish. A bad law is a bad law. And, all the ignorantia legis in the world won't legitimize either the law, or caging or fining a human being for breaking it.

OC for ME · Mar 26, 2015

Sorry skid...the op is now moot.

http://www.npr.org/2014/12/15/37099...affic-stop-ok-despite-misunderstanding-of-law

skidmark · Mar 26, 2015

OC for ME said:
Sorry skid...the op is now moot.

http://www.npr.org/2014/12/15/37099...affic-stop-ok-despite-misunderstanding-of-law

Sorry OCFM but the OP is still quite valid. It asks if the situation you refer to (the latest (?) in a long history of such abuses) should be done away with by changing the way things are looked at.

SCOTUS has repeatedly said that if The People are not happy with the way rulings come down they should get Congress to write laws that make the way they want things to come down as the new law of the land.

Should We the People tell Congress we want them to do that, and couch it as an offer they would prefer not to refuse?

Honestly, the first time (at least in a long time) I come here with a hypothetical/if-in-a-perfect-world and get kicked in the jimmies for not dealing with how-the-world-really-is. Sometimes I think I can't win no matter what I do.

stay safe.

OC for ME · Mar 26, 2015

Nightmare said:
The maxim "ignorance of the law is no excuse," does not apply here, Chief Justice Roberts maintained, because Heien "is not appealing a brake light ticket; he is appealing a cocaine-trafficking conviction as to which there is no asserted mistake of fact or law."
http://www.npr.org/2014/12/15/37099...affic-stop-ok-despite-misunderstanding-of-law

Nooo...he was trying to get the drug charge tossed based on a unlawful stop (vague law

) and the cop's misunderstandings. I read the law and sub-para a is quite clear and the cop got it right. The druggie tried to use the vagueness-ess of sub-para d to get the stop, thus search, tossed.

OC for ME · Mar 26, 2015

skidmark said:
Sorry OCFM but the OP is still quite valid. It asks if the situation you refer to (the latest (?) in a long history of such abuses) should be done away with by changing the way things are looked at.

SCOTUS has repeatedly said that if The People are not happy with the way rulings come down they should get Congress to write laws that make the way they want things to come down as the new law of the land.

Should We the People tell Congress we want them to do that, and couch it as an offer they would prefer not to refuse?

Honestly, the first time (at least in a long time) I come here with a hypothetical/if-in-a-perfect-world and get kicked in the jimmies for not dealing with how-the-world-really-is. Sometimes I think I can't win no matter what I do.

stay safe.

So, you want how the court looks at that "fruit from a poisoned tree" thing and get a bunch of political critters to enact laws that change that fruit/tree thing. OK.

...wait for it...

SCOTUS has also "stated" that "they" cannot hold a future Congress to a current Congress' "acts"...so, where the heck does that leave us, and your hypothetical/if-in-a-perfect-world? Likely right where we were before you posted your "hypothetical/if-in-a-perfect-world" postulation.

The simple answer is to have our political critters remove the exemptions for cops in the laws that we are held to account for violating...as a starting point. Then the "case law" will fall of their own accord. QI would evaporate over night...easy, no?

But, some folks may see the obliteration of QI as a threat to peace and harmony on earth. Cuz we all know that cops are human too and make mistakes...right? Mistakes that a check, written by the state, using our money, that will make all things right, heal the scars, and bring back the dead.

Please excuse my cynicism, I do not hold the state in that high a regard where it can fix itself...even with our "urging."

user · Mar 29, 2015

I'll throw another spaniard in the works, if I might. Consider that the criterion for finding a law unconstitutionally vague is whether or not the average person might be able to know what it is he's supposed to do or not do. "Void for vagueness" is a close relative of "ignorance of the law". In fact, I really can't tell 'em apart.

The origin of the phrase, "ignorance of the law is no excuse" comes to us from the hoary past, when most folks couldn't read and there was no code. The Biblical precept that "the law is written on every human heart" was the basis for the conclusion that the average person ought to know right from wrong, and people who do wrong in spite of that common understanding ought to be punished. Though if they're not capable of that understanding, e.g., children under the age of seven, insane, or seriously intellectually deficient, then they can't be held criminally responsible. But they're still using that precept, even though The Law, at least in Virginia, consists of sixty-one titles of the Code, fifty-one titles of the U.S. Code, plus the Virginia Administrative Code and the Code of Federal Regulations, the latter of which fills a whole room of bookshelves. And on top of that, the law of England as it was in 1607 is, by statute, the law of Virginia unless "repugnant" for some reason, which means the Common Law going back to 1066. I've got a suit going on right now based on a statute of Eliz. I, R. You really supposed to know all that? I don't know any lawyers who can do more that cover their own little areas of practice - the guy who does divorces doesn't have a clue about corporate formation, and the corporate guy doesn't know what an oil and gas lease is about.

It gets even more complicated when a criminal prosecution depends on magic words such as "wilfully", "knowingly", "intentionally", or "recklessly".

sudden valley gunner · Mar 29, 2015

user said:
I'll throw another spaniard in the works, if I might. Consider that the criterion for finding a law unconstitutionally vague is whether or not the average person might be able to know what it is he's supposed to do or not do. "Void for vagueness" is a close relative of "ignorance of the law". In fact, I really can't tell 'em apart.

The origin of the phrase, "ignorance of the law is no excuse" comes to us from the hoary past, when most folks couldn't read and there was no code. The Biblical precept that "the law is written on every human heart" was the basis for the conclusion that the average person ought to know right from wrong, and people who do wrong in spite of that common understanding ought to be punished. Though if they're not capable of that understanding, e.g., children under the age of seven, insane, or seriously intellectually deficient, then they can't be held criminally responsible. But they're still using that precept, even though The Law, at least in Virginia, consists of sixty-one titles of the Code, fifty-one titles of the U.S. Code, plus the Virginia Administrative Code and the Code of Federal Regulations, the latter of which fills a whole room of bookshelves. And on top of that, the law of England as it was in 1607 is, by statute, the law of Virginia unless "repugnant" for some reason, which means the Common Law going back to 1066. I've got a suit going on right now based on a statute of Eliz. I, R. You really supposed to know all that? I don't know any lawyers who can do more that cover their own little areas of practice - the guy who does divorces doesn't have a clue about corporate formation, and the corporate guy doesn't know what an oil and gas lease is about.

It gets even more complicated when a criminal prosecution depends on magic words such as "wilfully", "knowingly", "intentionally", or "recklessly".

Bentham was a significant pusher of the modern version of "ignorance is no excuse".

When law was natural law there is no ignorance of it. Ignorance of positive has been used as an excuse in common law courts.

Great post by the way!.

Baked on Grease · Mar 29, 2015

user said:
It gets even more complicated when a criminal prosecution depends on magic words such as "wilfully", "knowingly", "intentionally", or "recklessly".

Even worse... when words like "reasonable" are used...

OC for ME · Mar 30, 2015

Baked on Grease said:
Even worse... when words like "reasonable" are used...

No, what is worse is when a judge tells reasonable folks (juries) what reasonable is...or should be, or else.

solus · Mar 30, 2015

btw user, was an informative post...thanks for taking the time.

ipse

sudden valley gunner · Mar 30, 2015

OC for ME said:
No, what is worse is when a judge tells reasonable folks (juries) what reasonable is...or should be, or else.

And dismiss well informed jurors.

OC for ME · Mar 30, 2015

sudden valley gunner said:
And dismiss well informed jurors.

Interesting question...must a juror, potential that is, inform the grand inquisitor that they know what nullification is and is more than prepared to employ it?

I know I don't...inform that is. I have yet to have been fortunate enough to get into a deliberation room, to educate my fellow jurors...that is.

OC for ME · Mar 30, 2015

Nightmare said:
Inform, as volunteer? No. Depending on the jurisdiction, jury and jury pool background investigations may be allowed, including a demand for access to social networks like OCDO. There will likely be a certification under penalty of perjury that the juror make a decision impartial to both the state/prosecution and the defendant.

Interesting.

Criminal Jury Instructions

1.1-2 Role of the Jury

Revised to December 1, 2007

As a juror it will be your duty to decide, based on the evidence presented here in this courtroom, whether or not the state has proved beyond a reasonable doubt the elements of each crime charged in a count.

It is your job as jurors to decide the facts. You will decide what the facts are based on the evidence presented in this courtroom; you will not make any private investigations. As a juror, you may draw any and all inferences that you find reasonable and logical from the evidence you hear. You will follow the instructions as to the law that applies in this case as I will explain it to you. You must follow the instructions as to the law, whether or not you agree with it. As jurors you must put aside your personal opinions as to what the law is or should be, and you must apply the law as I instruct. You will apply the law, as instructed, to the facts you find, based on the evidence, and in that way reach your verdict.

As to each count, your verdict will be either guilty or not guilty. Your verdict as to a count must be unanimous; all (six / twelve) jurors must agree on the verdict as to each count.

http://www.jud.ct.gov/ji/criminal/part1/1.1-2.htm

Citizen · Mar 30, 2015

OC for ME said:
No, what is worse is when a judge tells reasonable folks (juries) what reasonable is...or should be, or else.

To buttress OC's point:

"f the government can dictate to a jury any law whatever, in a criminal case, it can certainly dictate to them the laws of evidence. That is, it can dictate what evidence is admissible, and what inadmissible, and also what force or weight is to be given to the evidence admitted. " Lysander Spooner, An Essay on the Trial by Jury, 1852.

http://lysanderspooner.org/node/35

Do take a moment and read at least Section I. You'll know and understand more about the purpose of a jury than 95% of Americans.

sudden valley gunner · Mar 30, 2015

Citizen said:
To buttress OC's point:

"f the government can dictate to a jury any law whatever, in a criminal case, it can certainly dictate to them the laws of evidence. That is, it can dictate what evidence is admissible, and what inadmissible, and also what force or weight is to be given to the evidence admitted. " Lysander Spooner, An Essay on the Trial by Jury, 1852.

http://lysanderspooner.org/node/35

Do take a moment and read at least Section I. You'll know and understand more about the purpose of a jury than 95% of Americans.

Its a great book! I found it on podcast and listened to it a lot last year on my commutes.

It made me realize that it actually is a travesty for jurors to be "weeded" in any way. It should be done by lot. This who for bias thing is simply bullcrap, it is to ensure there is a statist bias.

OC for ME · Mar 31, 2015

sudden valley gunner said:
Its a great book! I found it on podcast and listened to it a lot last year on my commutes.

It made me realize that it actually is a travesty for jurors to be "weeded" in any way. It should be done by lot. This who for bias thing is simply bullcrap, it is to ensure there is a statist bias.

Or, more accurately, a process bias. Judges, and they alone, will not cede one inch of their process. Judges hold the supreme power over the citizenry and thus society. They are far more dangerous to liberty and society. When a judge is held above all the laws of the land and can only be removed by a panel of their peers then they cannot be held to account.

Yes, I know, many judges are elected, yet, when was the last time a voter could (including me for many years) name every judge that "serves" their q-munnity.

I have recently taken upon my self to communicate my concerns over a judge's (the ones more likely that I may face and who appear on my local/state ballots) rulings and performance.

Why do judges always refer to the people's court as their court?

I always ask this question of judges seeking my vote one question; What will you do to hold to account a lying cop? I have yet to receive any response to this question. I then vote against the incumbent.

Should ignorance of the law be an excuse for LACs like it is for LEOs/LEAs?

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