Re: pornography & the ``cypherpunk cause''
Edward Elhauge <ee@lever.com> said:
A counter-example might be: 1) Someone breaks down my door while I am eating. As per California law there is a REBUTABLE PRESUMPTION (embedded in statutory law) that my life is in danger and that deadly force is justified. Consequently, my response to the situation is ruled justifiable homicide.
Doesn't this need to be phrased more cautiously? As I understand it, you need to demonstrate to the jury that you feared for your life, and someone breaking down your door is not enough for that. Unlike in some other states, in California it is essential that there be a clear threat to your life.
2) Someone breaks down my door while I am eating. A feeble minded guest of mine shouts out "I don't think he's armed." Consequently, the police find that the man is either not armed or had a water pistol. I might do 5-10 for manslaughter or 2nd degree murder.
The phrasing of this makes me think that you and I have the same impression of the law, but that you just were a bit terse in phrasing #1.
Your example doesn't involve a law that requires knowledge or a state of mind to be guilty. Laws about the transport of illegal information do!
I tend to be concerned about arguments that don't take the infamous "ignorance of the law is no excuse" into account. That is, one needs to make a clear distinction between ignorance of the law and ignorance of the action itself. There have been times in this particular thread when I wasn't clear whether people were making that distinction. Doug
In message <9310140227.AA02879@netcom2.netcom.com>, Doug Merritt writes:
Edward Elhauge <ee@lever.com> said:
A counter-example might be: 1) Someone breaks down my door while I am eating. As per California law there is a REBUTABLE PRESUMPTION (embedded in statutory law) that my life is in danger and that deadly force is justified. Consequently, my response to th e situation is ruled justifiable homicide.
Doesn't this need to be phrased more cautiously? As I understand it, you need to demonstrate to the jury that you feared for your life, and someone breaking down your door is not enough for that. Unlike in some other states, in California it is essential that there be a clear threat to your life.
No the door breaking down is good enough. The legislature explicitly said that that was good enough regardless of what common law might say. The phrasing refers to a "tumultuous" entry, so breaking through a window or wall would count too. This does not apply if a family member is involved. Back to the relevance to knowledge of illegal info; the presumption is REBUTABLE. For instance if the person was searched before entering the property and it can be proven that you knew that they were unarmed you would be guilty of some level of murder. A less jarring example might be the protection couriers such as UPS have. If in the normal course of business they can't know what they are handling they are not responsible for the contents. Both these protections and the email protection revolve around letting people carry on business in a routine way, without being second guessed latter. Society needs common carrier like transport of mail and objects and it isn't feasible to check each package so a cut and dried protection is extended. Society realizes that most of the time a person breaking down a door is a danger and that there is no time for the defender to research the situation if they are going to protect their lives. Occasionally the rule of thumb turns out wrong (what if my neighbor breaks down my door because they see a fire in my house that I am not aware of). That is why we need these protections.
Your example doesn't involve a law that requires knowledge or a state of mind to be guilty. Laws about the transport of illegal information do!
I tend to be concerned about arguments that don't take the infamous "ignorance of the law is no excuse" into account. That is, one needs to make a clear distinction between ignorance of the law and ignorance of the action itself.
Exactly right. We are assumed to be knowledgeable of the law no matter how unreasonable it is. [It is physically impossible for one person to keep up with all law]. In certain cases ignorance of facts or actions is a protection though. I would rather not have seen the EFF warning and I never looked for those files; it isn't my responsibility. -- Edward Elhauge -- ee@lever.com -- Lever Industries, San Francisco "At every stage of history our concern must be to dismantle those forms of authority and oppression that survive from an era when they might haave been justified in terms of the need for security or survival or economic development, but that now contribute to -- rather than alleviate -- material and cultural deficit." -- Noam Chomsky
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Edward Elhauge