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Legal Myth Monday: The Myths and Realities of Trespass

noreply@blogger.com (Mr. Librarian) — Mon, 19 Oct 2026 07:00:00 +0000

Trespass rarely arrives wearing a black mask and carrying a sack marked “PROPERTY RIGHTS.”

Sometimes it looks like a neighbor's fence, a shortcut across the yard, a wayward dog, or even a puff of smoke drifting across the property line.

Behind these deceptively innocent intrusions lurks a surprisingly complex body of law and the myths are everywhere.

So, today, we're going to explore all things Trespass so that you don't get crossed up (or crossed over) where you ought not be.

Myth #1: “If there’s not a No Trespassing sign posted, it isn’t trespassing.”

Reality: A sign is useful evidence of lack of permission, but civil trespass does not generally depend upon a sign.

Authority: State v. Christensen, 131 Idaho 143, 953 P.2d 583, 587–88 (1998).

Christensen involved law enforcement entering private property during an investigation. The property owner argued that a “No Trespassing” sign demonstrated that the officers had no implied license to enter.

The Idaho Supreme Court recognized that a clearly posted “No Trespassing” sign, particularly when combined with a physical barrier such as a gate, can revoke the ordinary implied license to approach a residence. The court contrasted that situation with circumstances in which the property owner has not clearly manifested an intent to exclude visitors.

Reality Check: A sign is a warning, not a magic spell. Your property doesn't suddenly become trespass-proof only after somebody hammers up a piece of plywood saying “KEEP OUT.”

Myth #2: “You have to intend to trespass.”

Reality: You generally have to intend the physical entry, but you do not have to intend to violate someone else's property rights.

Authority: Ansay v. Boecking-Berry Equip. Co., 450 F.2d 433, 435–36 (10th Cir. 1971).

The case involved an unlawful possession of land and whether the defendant's good-faith belief that its legal position was correct should protect it from trespass liability or reduce the damages.

The Tenth Circuit held that the defendant's state of mind was generally irrelevant to the trespass claim. The required intent was simply the intent to perform the act that resulted in the entry. Thus, a person can be liable even when acting in good faith and under a reasonable—but mistaken—belief that the entry is lawful.

Reality Check: “But I thought it was my property!” is not automatically a Get-Out-of-Trespass-Free card.

Myth #3: “If I accidentally cross the property line, I can't be liable for trespass.”

Reality: An innocent mistake about the boundary does not necessarily defeat the underlying trespass claim.

Authority: Fischer v. Croston, 164 Idaho 189, 438 P.3d 1211 (2019).

This was a boundary dispute between neighboring landowners. The parties disagreed about ownership of a strip of property. One side entered the disputed property, removed vegetation, and constructed a fence. The defendants argued that their conduct was based on their belief concerning the boundary.

The Idaho Supreme Court explained that an innocent mistake concerning the boundary or location of property can matter to trespass liability and damages, but it distinguished that situation from conduct occurring after the defendant has been put on notice that the property is disputed.

Once the defendants knew of the dispute and nevertheless reentered, cut vegetation, and erected the fence, the court found the conduct willful and intentional and upheld trespass liability and treble damages.

Reality Check: Your surveyor may be wrong. Your GPS may be wrong. Your memory may definitely be wrong. The property line doesn't care.

Myth #4: “If I didn't damage anything, there is no trespass.”

Reality: Physical damage isn't required.

Authority: Walker Drug Co. v. La Sal Oil Co., 972 P.2d 1238, 1243–44 (Utah 1998).

The Utah Supreme Court considered trespass and the damages associated with an invasion of possessory rights.

Trespass protects the right to exclusive possession. Proof of actual damage is not necessary to establish liability; damages can include nominal damages where substantial damages aren't shown.

Reality Check: You don't have to bulldoze the rose garden. Sometimes the trespass is the damage.

Myth #5: “Trespass only happens when a person physically walks onto someone else's property.”

Reality: A trespass can occur when a person causes another person or a thing to enter the land.

Authority: Pub. Serv. Co. of Colo. v. Van Wyk, 27 P.3d 377, 389–90 (Colo. 2001).

The plaintiffs alleged that emissions from the defendant's electrical transmission operations crossed onto their property. The Colorado Supreme Court addressed whether trespass requires the defendant, or a tangible object, to physically enter the property.

The court explained that traditional trespass involves a physical intrusion, and that the Restatement recognizes liability where the defendant “causes a thing or third person” to enter another's land. The court then went further and held that, under Colorado law, intangible intrusions can also constitute trespass when they satisfy the applicable requirements.

Reality Check: Your feet aren't required. Your trash can, dirt pile, fence, equipment or anything else you intentionally put over the line can do the trespassing for you.

Myth #6: “If I built the fence on the wrong side of the property line by mistake, that's not trespass.”

Reality: It can be.

Authority: La Bruno v. Lawrence, 64 N.J. Super. 570, 166 A.2d 163, 166–68 (App. Div. 1960).

A surveyor mistakenly located the boundary between neighboring properties. Relying on the erroneous survey, the neighboring property owners had a fence constructed on the plaintiff's property. The plaintiff sued for trespass and damages.

The New Jersey Appellate Division held that the surveyor's mistake, honest belief, or professional negligence was not a defense to the underlying trespass. The court did, however, distinguish between trespass liability and punitive damages: the mistake could negate the intentional wrongdoing necessary for punitive damages.

Reality Check: “Oops” is a perfectly good explanation of how the fence got there. It isn't necessarily a legal defense to leaving it there.

Myth #7: “Trespass requires malicious or bad-faith conduct.”

Reality: No. Malice or bad faith may become important when determining punitive damages, but they're not necessary for basic trespass liability.

Authority: Miller v. National Broadcasting Co., 187 Cal. App. 3d 1463, 1477–78, 232 Cal. Rptr. 668 (1986).

NBC's camera crew entered the plaintiff's apartment without authorization while investigating a story. The trial court had concluded that there was no trespass because the defendants lacked malice and the plaintiff suffered no actual damage.

The California Court of Appeal rejected that reasoning. The court explained that trespass is an intentional tort in the legal sense because the defendants intended to enter the property. Their particular motivation (whether malicious, innocent, or otherwise) was not necessary to establish trespass. The court specifically distinguished the intent required for trespass from the state of mind that might justify punitive damages.

Reality Check: You don't have to be a villainous villain twirling a mustache. Sometimes you're just a trespassing trespasser.

Myth #8: “Only the person who owns the property can sue for trespass.”

Reality: Trespass is fundamentally a possessory action. Ownership and possession are not necessarily the same thing.

Authority: Manor Enterprises, Inc. v. Vivid, Inc., 228 Wis. 2d 59, 596 N.W.2d 425 (Ct. App. 1999).

The case involved a dispute over unauthorized placement of objects on property. The defendant challenged the plaintiff's ability to maintain a trespass action.

The Wisconsin Court of Appeals expressly stated that a plaintiff in a trespass action need establish only a right to possession of the land, not ownership of the land. In other words, trespass protects the possessory interest.

Reality Check: Trespass law protects possession, not just whoever has the prettiest deed in the filing cabinet.

Myth #9: “Once you give someone permission to enter your property, they can keep coming back.”

Reality: Consent has boundaries. Permission can be limited, revoked, or exceeded.

Authority: Restatement (Second) of Torts § 158 (Am. L. Inst. 1965)

Keyzer v. Amerlink, Ltd., 173 N.C. App. 736, 620 S.E.2d 511 (2005).

The case involved a dispute over entry onto property where the defendants claimed they had permission to enter. The North Carolina Court of Appeals examined the nature and limits of consent to enter another person's land.

The court explained that consent to enter another's property is conditional, not absolute. A person who initially enters with permission can become a trespasser by subsequently exceeding or abusing the scope of that permission. The court relied on Blackwood v. Cates, 297 N.C. 163, 167, 254 S.E.2d 7, 9 (1979), for the principle that an initially lawful entry can become trespass when the entrant's subsequent conduct exceeds the authority granted.

Reality Check: “Come over anytime” is not the same thing as “Congratulations, you've acquired a lifetime easement.”

Myth #10: “If the public has traditionally used private land, that automatically gives the public a legal right to use it.”

Reality: Longstanding use does not automatically create a public easement.

Authority: Clickner v. Magothy River Ass'n, 424 Md. 253, 35 A.3d 464 (2012).

The case involved Dobbins Island, where members of the public had historically used a beach on privately owned property. The public had used the beach for years, and the question was whether that longstanding use had created a legal right to continue using the private property.

The Maryland Court of Appeals held that the public's historic use did not automatically establish a public easement or right of access. The court applied a presumption that public use was permissive rather than adverse. Because the evidence did not establish that the public had used the property under a claim of right, the use remained a revocable license, which the owners could terminate.

Reality Check: “Because we've always done it” might work at a family reunion, it's considerably less impressive in a property dispute.

Myth #11: “If my neighbor lets me use part of his property long enough, I automatically get an easement.”

Reality: Permission and adverse use are fundamentally different concepts. Long use does not automatically create a property right.

Authority: Workman v. Klinkenberg, 4 Wn. App. 2d 981, 430 P.3d 716, 721–23 (2018).

The dispute concerned a claimed prescriptive easement over neighboring property. The claimant argued that his long use of the property entitled him to an easement.

The Washington Court of Appeals held that when use of another person's property begins as a neighborly accommodation, the person claiming a prescriptive easement must overcome the presumption that the use was permissive. The claimant must show when and how the use became adverse. Simply continuing to use the property doesn't automatically transform permission into a property right.

Reality Check: Ten years of your neighbor saying “Sure, go ahead” doesn't necessarily mean you now own a piece of his driveway.

Myth #12: “If I genuinely need to cross someone's property, necessity makes it legal.”

Reality: Necessity can be a recognized defense or can support certain property doctrines, but “I really needed to” isn't a universal trespass exemption.

Authority: Restatement (Second) of Torts § 197 (Am. L. Inst. 1965)

Ploof v. Putnam, 81 Vt. 471, 71 A. 188, 190 (1908).

Ploof was sailing on Lake Champlain when a violent storm arose. He sought refuge by mooring his boat to the defendant's dock. The defendant's servant untied the boat, causing it to be driven ashore and damaged.

The Vermont Supreme Court held that necessity can justify what would otherwise be a trespass. When a person reasonably enters another's property to escape an imminent danger, the entry can be privileged. The court therefore rejected the argument that the plaintiff's entry onto the private dock was simply an unlawful trespass.

Reality Check: “I was taking a shortcut” and “I was escaping a life-threatening emergency” are not exactly the same legal argument.

Myth #13: “If someone is trespassing, the property owner can do whatever is necessary to remove them.”

Reality: The right to exclude trespassers does not give a landowner unlimited authority to use force.

Authority: Restatement (Second) of Torts §§ 77–83 (Am. L. Inst. 1965): The common-law privilege of reasonable self-help is limited by the circumstances and applicable state law.

Saidi v. United States, 110 A.3d 606, 611–12 (D.C. 2015).

Saidi was charged with assault after he punched a man who refused to leave an apartment. Saidi claimed he was justified in using force to eject a trespasser and protect his property.

The D.C. Court of Appeals recognized that a person lawfully in possession of real property has a common-law privilege to use a reasonable amount of force to eject a trespasser. But that privilege ends when the force used exceeds what is reasonably necessary under the circumstances. The court upheld Saidi's conviction because the evidence supported the conclusion that his use of force was not justified.

Reality Check: “Get off my lawn” is property law. “And now I'm going to beat you with a baseball bat” is a completely different legal seminar.

Myth #14: “If I don't know the property line, I can't be liable for trespass.”

Reality: Lack of knowledge of the boundary is not necessarily a defense to the underlying trespass.

Authority: Barrios v. Simpkins, No. M2021-01347-COA-R3-CV, 2022 WL 16846642 (Tenn. Ct. App. Nov. 10, 2022).

Neighboring landowners disputed the location of their common boundary. The trial court established the boundary but dismissed the trespass claim because the defendants believed the disputed property belonged to them.

The Tennessee Court of Appeals held that the defendants' belief that they owned the property did not eliminate the intent required for trespass. The relevant intent was the intent to be on the land; the defendants' subjective belief concerning ownership was irrelevant to that element. The trespass claim was therefore remanded for further proceedings.

Reality Check: The law doesn't require you to carry a surveyor's transit in your backpack. Unfortunately, it also doesn't require the boundary to announce itself when you cross it.

Myth #15: “Civil trespass means the defendant was negligent.”

Reality: Here's the head-spinner: trespass is generally an intentional tort, but the defendant doesn't have to intend the damage or even realize the act will invade someone else's property. The relevant intent can be simply intending to perform the act that produces the intrusion (ie walking across the property line).

Authority: Hoery v. United States, 64 P.3d 214, 217–18 (Colo. 2003).

The case involved claims arising from government activities that allegedly caused an intrusion onto private property. The Colorado Supreme Court examined the intent requirement for trespass and distinguished intentional trespass from negligence.

The court held that trespass requires an intent to perform the act that itself constitutes, or inevitably causes, the intrusion. The defendant does not have to intend to cause the resulting damage. Colorado therefore treats trespass as an intentional tort rather than simply another form of negligence.

Reality Check: “I accidentally did it” may save you from one tort while leaving you standing squarely in another.

The bottom line here is that trespass law isn't about who crossed the line with the most nefarious intentions Sometimes, you can be trespassing without even realizing you've crossed that line. While the law draws the line it, unfortunately, doesn't always paint it bright yellow.

STOP RESISTING!!!!

noreply@blogger.com (Mr. Librarian) — Mon, 12 Oct 2026 07:00:00 +0000

You know what I think is odd? Police who yell/shout/scream at people they're arresting to stop resisting who are also trying NOT to be arrested - and then charge people with resisting arrest because, why?!

I mean, who in their right mind WANTS to be restrained and/or put in handcuffs (well, unless, uh,...they're into that sort of thing in the bedroom, or something).

It's only natural to resist being restrained and then you go and penalize someone for resisting? It's like saying you can't breathe and then get arrested for breathing.

Anyway, I was out and about the other day and I witnessed two police officers arresting this guy who really didn't want to be arrested. He was flip flopping more than a politician in an election year and all the while the police were yelling, "STOP RESISTING!!!" and he wasn't having it.

Two tasers later, guy was subdued, in the back of the patrol car, and off to the pokey.

So, for reference sake, “resisting arrest” is a criminal charge that generally applies when a person intentionally tries to prevent a law enforcement officer from lawfully carrying out an arrest, detention, or search.

Not only is resisting arrest a criminal charge, but it is a separate charge not connected to the underlying charge. In almost every U.S. jurisdiction, resisting arrest is its own, independent criminal offense.

This means prosecutors can (and often do) charge resisting arrest in addition to the crime that led to the arrest (e.g., DUI + resisting).

So, even if the underlying charge is later dismissed, dropped, or results in acquittal, the resisting arrest charge does not automatically go away. Prosecutors can still pursue resisting arrest, because the elements are different. What matters is whether the officer was acting under color of law and the defendant engaged in “resisting” behavior.

What are some examples of resisting behavior?

Running away after being told you’re under arrest.
Physically struggling or refusing to put your hands behind your back.
Blocking or interfering with another person’s arrest.
Giving false identification during an arrest (in some jurisdictions).

Other related charges associated with resisting arrest include:

Obstruction of justice.
Assault on a peace officer.
Escape (if someone flees after being arrested or in custody).

Courts often draw an important distinction when looking at a charge of resisting arrest.

If the underlying charge fails on technical grounds (e.g., lack of evidence, procedural defect), resisting arrest usually still stands. On the other hand, if the arrest itself was unlawful (e.g., no probable cause, unconstitutional stop), then the resisting arrest charge is often thrown out.

While it's called different things in different jurisdictions, every state in the union has a statute dealing with resisting arrest, like so:

Alabama: Code of Alabama §13A-10-41 – Resisting Arrest (Class B misdemeanor).

Alaska: Alaska Stat. §11.56.700 – Resisting or Interfering with Arrest.

Arizona: A.R.S. §13-2508 – Resisting Arrest (Class 6 felony if using force).

Arkansas: Ark. Code §5-54-103 – Resisting Arrest.

California: Cal. Penal Code §148(a)(1) – Resisting, Delaying, or Obstructing an Officer.

Colorado: Colo. Rev. Stat. §18-8-103 – Resisting Arrest.

Connecticut: Conn. Gen. Stat. §53a-167a – Interfering with an Officer.

Delaware: Del. Code tit. 11, §1257 – Resisting Arrest with Force or Violence.

Florida: Fla. Stat. §843.01–843.02 – Resisting Officer with Violence (felony) and Without Violence (misdemeanor).

Georgia: O.C.G.A. §16-10-24 – Obstructing or Hindering Law Enforcement.

Hawaii: HRS §710-1026 – Resisting Arrest.

Idaho: Idaho Code §18-705 – Resisting and Obstructing Officers.

Illinois: 720 ILCS 5/31-1 – Resisting or Obstructing a Peace Officer.

Indiana: Ind. Code §35-44.1-3-1 – Resisting Law Enforcement.

Iowa: Iowa Code §719.1 – Interference with Official Acts.

Kansas: Kan. Stat. §21-5904 – Interference with Law Enforcement.

Kentucky: KRS §520.090 – Resisting Arrest.

Louisiana: La. R.S. §14:108 – Resisting an Officer.

Maine: 17-A M.R.S. §751 – Refusing to Submit to Arrest or Detention.

Maryland: Md. Code, Crim. Law §9-408 – Resisting Arrest.

Massachusetts: Mass. Gen. Laws ch. 268, §32B – Resisting Arrest.

Michigan: MCL §750.81d – Resisting and Obstructing a Police Officer.

Minnesota: Minn. Stat. §609.50 – Obstructing Legal Process, Arrest, or Firefighting.

Mississippi: Miss. Code §97-9-73 – Resisting Arrest.

Missouri: Mo. Rev. Stat. §575.150 – Resisting or Interfering with Arrest, Detention, or Stop.

Montana: Mont. Code §45-7-301 – Resisting Arrest.

Nebraska: Neb. Rev. Stat. §28-904 – Resisting Arrest.

Nevada: NRS §199.280 – Resisting Public Officer.

New Hampshire: RSA §642:2 – Resisting Arrest or Detention.

New Jersey: N.J.S.A. §2C:29-2 – Resisting Arrest; Eluding Officer.

New Mexico: NMSA §30-22-1 – Resisting, Evading, or Obstructing an Officer.

New York: N.Y. Penal Law §205.30 – Resisting Arrest.

North Carolina: N.C. Gen. Stat. §14-223 – Resist, Delay, or Obstruct an Officer.

North Dakota: N.D. Cent. Code §12.1-08-02 – Preventing Arrest or Discharge of Other Duties.

Ohio: Ohio Rev. Code §2921.33 – Resisting Arrest.

Oklahoma: 21 Okl. St. §268 – Resisting Executive Officer.

Oregon: ORS §162.315 – Resisting Arrest.

Pennsylvania: 18 Pa. Cons. Stat. §5104 – Resisting Arrest or Other Law Enforcement.

Rhode Island: R.I. Gen. Laws §12-7-10 – Resisting Lawful Arrest.

South Carolina: S.C. Code §16-9-320 – Resisting Arrest; Assaulting an Officer While Resisting Arrest.

South Dakota: S.D. Codified Laws §22-11-4 – Resisting Arrest.

Tennessee: Tenn. Code §39-16-602 – Resisting Stop, Frisk, Halt, Arrest, or Search.

Texas: Tex. Penal Code §38.03 – Resisting Arrest, Search, or Transportation.

Utah: Utah Code §76-8-305 – Interference with Arresting Officer.

Vermont: 13 V.S.A. §3017 – Resisting Arrest.

Virginia: Va. Code §18.2-460(E) – Obstructing Justice (Resisting Arrest provision).

Washington: RCW §9A.76.040 – Resisting Arrest.

West Virginia: W. Va. Code §61-5-17 – Obstructing an Officer.

Wisconsin: Wis. Stat. §946.41 – Resisting or Obstructing Officer.

Wyoming: Wyo. Stat. §6-5-204 – Resisting Arrest.

So, how does this all play out in real life? I mean, do resisting arrest charges stick or do they get tossed out like charges for interfering with police? Turns out, there are no hard and fast rules and resisting arrest is not always a guaranteed win.

United States Supreme Court

Bad Elk v. United States, 177 U.S. 529 (1900)
- Holding: A defendant could resist an unlawful arrest (at the time) and use reasonable force. The Court overturned the conviction, reasoning that if the officer had no right to arrest, resistance wasn’t a crime.
- Note: Most modern jurisdictions no longer follow this strict rule — now you generally cannot resist even an unlawful arrest.

Alaska

Howard v. State, 109 P.3d 1033 (Alaska Ct. App. 2005).

The Alaska Court of Appeals reversed a resisting-arrest conviction because the defendant ran from a trooper and hid in the woods, but there was insufficient evidence that he used the “force” required by Alaska's resisting-arrest statute, AS 11.56.700. Alaska's statute doesn't make mere noncompliance or flight automatically resisting arrest. Section 11.56.700 requires that the person resist by force, criminal mischief, or means creating a substantial risk of physical injury. A violation is a Class A misdemeanor.

California

People v. Curtis, 70 Cal.2d 347 (1969)
- Conviction for resisting arrest reversed because jury instructions failed to clarify that the defendant had a limited right to resist excessive force.
People v. Quiroga, 16 Cal.App.4th 961 (1993)
- Resisting arrest conviction overturned; simply refusing to sit down or give one’s name was not enough to constitute “resisting, delaying, or obstructing.”

New York

People v. Cherry, 307 N.Y. 308 (1954)
- Overturned resisting arrest conviction because the arrest was unlawful (no probable cause).
- New York law requires a lawful arrest as a prerequisite for resisting arrest.

Florida

Slydell v. State, 792 So.2d 667 (Fla. Dist. Ct. App. 2001)
- Conviction overturned because defendant’s actions (walking away, refusing to answer) didn’t amount to “resisting.”
Francis v. State, 736 So.2d 97 (Fla. Dist. Ct. App. 1999)
- Simply pulling arm away without violence was not resisting with violence; conviction overturned.

Texas

Sheehan v. State, 201 S.W.3d 820 (Tex. App. 2006)
- Conviction reversed; refusal to obey officer’s command without physical force did not meet statutory definition of resisting.

North Carolina

State v. Lynch, 94 N.C. App. 330 (1989)
- Court overturned resisting arrest conviction because the officer’s stop was unlawful (no reasonable suspicion), so resistance was not criminal.

Ohio

State v. Stayton, 126 Ohio App.3d 158 (1998)
- Resisting arrest conviction reversed because the officer was not acting within lawful scope when making the arrest.

Massachusetts

Commonwealth v. Moreira, 388 Mass. 596 (1983)
- Conviction overturned; court recognized a limited right to resist excessive force by police.

A few key things to note in cases where a resisting arrest charge was overturned:

Unlawful Arrest → If the arrest itself was unlawful (no probable cause, bad stop, invalid warrant), convictions for resisting have been reversed.
Insufficient Evidence of Resistance → Passive non-compliance (silence, walking away, pulling arm back slightly) is often not enough to sustain a conviction.
Excessive Force by Police → Some courts allow resistance if officers use unreasonable or excessive force.
Statutory Interpretation → Courts overturn convictions where prosecution stretched the meaning of “resist” or “obstruct” too far.

That all said, it's important to note that for as many cases where the charge of resisting arrest was overturned, there are as many cases where the charge was upheld in court, like:

United States Supreme Court

United States v. Cunningham, 509 U.S. 25 (1993) (per curiam)
- Upheld resisting-related conviction under federal law; the Court emphasized that active physical resistance against officers during lawful duties can be punished separately from the underlying offense.

California

In re Bacon, 240 Cal.App.2d 34 (1966)
- Conviction upheld where defendant physically struggled against police during a lawful arrest. The court held that “resisting” includes physical opposition.
People v. Allen, 109 Cal.App.3d 981 (1980)
- Defendant’s attempt to pull away and strike officers during arrest was sufficient for resisting; conviction affirmed.

Florida

C.E.L. v. State, 24 So.3d 1181 (Fla. 2009)
- Florida Supreme Court upheld resisting without violence conviction where juvenile fled from officers during a lawful investigatory stop. Flight alone constituted resistance.
Santiago v. State, 889 So.2d 1244 (Fla. Dist. Ct. App. 2005)
- Conviction affirmed where defendant tensed his arms and refused to be handcuffed, even without throwing punches.

Texas

Ford v. State, 538 S.W.2d 633 (Tex. Crim. App. 1976)
- Conviction upheld; defendant’s refusal to be handcuffed and physical struggle with officers satisfied statutory definition of resisting arrest.
Latham v. State, 128 S.W.3d 325 (Tex. App. 2004)
- Affirmed conviction; resisting arrest statute applies even if minimal force is used to prevent lawful arrest.

North Carolina

State v. Burton, 108 N.C. App. 219 (1992)
- Conviction affirmed; defendant pulled away and kicked officers during a lawful DWI arrest.

Massachusetts

Commonwealth v. Grandison, 433 Mass. 135 (2000)
- Conviction upheld where defendant repeatedly refused commands, fled, and physically fought officers; statute covers both passive and active resistance.

Some key themes to note in a valid charge of resisting arrest during a lawful arrest:

Lawful Arrest → Courts uphold resisting convictions when probable cause for the arrest exists.
Active Resistance → Physical struggles, fleeing, or tensing arms against handcuffs almost always lead to upheld convictions.
Passive Resistance Split → Some states (e.g., Florida, Massachusetts) hold that refusal or flight alone can count as resisting; others (like California) require more active conduct.
Separate Offense → Courts repeatedly affirm that resisting arrest is distinct from the underlying crime, so even if the other charge is weak, resisting may still stand.

Bottom line to all this, if you did the crime, suck it up and do the time.

If you didn't do the crime, then by all means fight tooth and nail - in court. Fight tooth and nail in court because if you fight with police, on the spot, they'll nail you for something else like assaulting a police officer - or worse.

And no one wants that.

Word of the Month for October 2026: National Sales Tax

noreply@blogger.com (Mr. Librarian) — Mon, 05 Oct 2026 07:00:00 +0000

There are some words that sound almost comforting: Freedom. Fairness. Simplicity.

And then there are three other words that make the hairs on the back of a taxpayer's neck stand up: "Federal Sales Tax."

Imagine, for a moment, that Congress comes along and tells you that the income tax is going away. No more Form 1040. No more withholding from your paycheck. No more payroll tax. No more federal estate and gift tax. And, perhaps most tantalizing of all, no more Internal Revenue Service.

Sounds pretty good, doesn't it?

Now imagine that Congress hands the job of collecting the replacement tax to the states.

Wait. Hold up. The ugly step sisters? The bumbling in-laws? Those are "the states" of which you speak?

Yep. The very state governments that already have their own sales-tax statutes, tax commissions, regulations, auditors, filing requirements, exemptions, definitions, enforcement procedures and (depending upon where you live) some rather creative ideas about what constitutes a taxable "service"?

Now the plot thickens.

That is essentially what the FairTax Act of 2025, H.R. 25, 119th Cong., 1st Sess. (2025) proposes.

And before we go any further, let's clear up one piece of political housekeeping: H.R. 25 was NOT introduced by President Donald Trump. It was introduced by Representative Earl "Buddy" Carter of Georgia on January 3, 2025, and referred to the House Committee on Ways and Means. As of October 2026, it remains a bill not a law.

So why discuss it now?

Because H.R. 25 proposes one of the most radical changes to the federal tax system in modern American history. And once you get past the seductive phrase "abolish the IRS," there is considerably more going on.

Before we get all into this, let's define what we're talking about here. NATIONAL SALES TAX (noun): A national sales tax is a tax imposed by the federal government upon the consumption of taxable goods and services, generally collected at the point of retail sale rather than through taxation of income.

Under H.R. 25, the tax would be imposed on the

use or consumption in the United States of taxable property or services.

The bill calls for a 23-percent tax-inclusive rate beginning in 2027, with the rate thereafter tied to the revenue needed for general federal spending, Social Security and Medicare. H.R. 25 § 201, 119th Cong. (2025).

An important word hidden in plain sight is "inclusive."

See, a 23-percent tax-inclusive rate is not the same thing as adding 23 percent to a $100 purchase.

For example, if the pre-tax price is $100, a 23-percent tax-inclusive rate produces a total price of approximately $129.87. In ordinary sales-tax language, that is roughly a 29.87-percent tax-exclusive rate.

So when somebody says, "It's only 23 percent," the reasonable response is: "Twenty-three percent of what?"

So, What Exactly Does H.R. 25 Do?

H.R. 25 is not simply a bill creating another sales tax. It attempts to rebuild the federal tax system from the ground up in essentially 4 steps.

Step 1. The federal income tax goes out the window.

Section 101 repeals Subtitle A of the Internal Revenue Code, which contains the federal income and self-employment tax provisions.

Step 2. Federal payroll taxes go.

Section 102 repeals Subtitle C, including the federal payroll-tax machinery used for Social Security and Medicare. But (and this is an important BUT) Social Security and Medicare do not disappear.

The bill instead directs federal sales-tax revenue into the Social Security and Medicare trust funds (under H.R. 25 § 102, § 904) which has been so "perfectly administered" by the federal government for lo these many years.

Step 3. Estate and gift taxes are gone.

Section 103 repeals Subtitle B of the Internal Revenue Code.

Step 4. The IRS is phased out.

This is where the headline gets interesting. H.R. 25 provides for the phase-out of IRS funding and administration of the repealed federal taxes. It also creates a Sales Tax Bureau within the Department of the Treasury.

So "abolish the IRS" does not mean "abolish federal tax administration."

It means something closer to: Abolish the IRS as we know it and replace its remaining federal tax functions with other Treasury machinery.

The bill specifically creates a Sales Tax Bureau to administer the national sales tax in states where federal administration becomes necessary and to perform other federal duties relating to the tax under H.R. 25 § 302.

That's our first little plot twist.

The States Get the Collection Job

This may be the most interesting part of the entire bill.

H.R. 25 says that the national sales tax is to be "administered, collected, and remitted to the United States Treasury" by a state if that state qualifies as an "administering State."

To qualify, a state must maintain a sales tax and enter into a cooperative agreement with the Secretary of the Treasury.

So, as per H.R. 25 § 401 the agreement covers such things as:

transfer of federal tax money;
information exchange;
confidentiality;
taxpayer rights;
dispute resolution; and
other administrative matters.

And the states get paid for doing it. That's right - an administering state may retain an administration fee equal to one-quarter of one percent of the federal tax it collects.

So the federal government says: "This is our tax."

The state says: "Sure. We'll collect it."

And the state gets to keep a piece of the money for doing so. That's not exactly the abolition of government tax administration; it's outsourcing.

And Here Comes Uncle Sam Again

Remember that word in the title, "Primarily?" H.R. 25 says the national sales tax will be administered primarily by the states.

Not exclusively by the states but "primarily."

What this means is that if a state does not qualify as an administering state, the Secretary of the Treasury administers the federal sales tax there. A state can also have another state perform the job under certain circumstances (kinda like how states dump their trash in New Jersey instead of their own landfills) under H.R. 25 § 404.

Of course, the Secretary of the Treasury retains substantial authority. In fact, The Treasury Secretary may:

issue regulations;
issue guidelines;
assist states;
provide for uniform administration;
provide public guidance;
facilitate interstate agreements;
resolve certain disputes among states; and
administer the tax directly in certain jurisdictions.

If a state regulation conflicts with a lawful federal regulation concerning the federal sales tax, the federal regulation controls as per H.R. 25 § 402 and § 406.

So the IRS may be going out the front door but the federal government appears to be leaving a Treasury Department-shaped footprint in the back door.

The Catch: State Sales Taxes Don't Go Away

This is another point that could easily get lost in the sales tax pitch.

H.R. 25 does not abolish state sales taxes. Instead, it specifically contemplates a "conforming State sales tax" which is a state tax using the same definition of taxable property and services as the federal system.

And the bill expressly contemplates that both the federal sales tax and a conforming state sales tax may be paid together in a single payment as per H.R. 25 § 2(a)(2), § 501.

In other words: Federal sales tax + state sales tax = still possible. In practice, what we the people could be looking at is a true Socialist 100% tax rate (50% to the Feds and 50% to the states).

So, while the national sales tax replaces federal income and payroll taxation, it does not magically make state taxation disappear.

And this is where things get interesting.

Fifty States, Fifty Tax Personalities

Today, state sales taxes are hardly uniform. Utah, for example, taxes tangible personal property and certain services, including particular repair, renovation, cleaning and maintenance services.

Oregon, by contrast, has no general sales or use tax.

That means a national system administered through state tax machinery immediately encounters a basic question: What exactly is a taxable "service"?

and that question is not academic.

Utah's courts have spent decades wrestling with it.

In Hardy v. State Tax Commission, 561 P.2d 1064 (Utah 1977), the Utah Supreme Court examined whether materials used by dentists in providing professional services were subject to sales or use tax. The court had to distinguish between the taxable sale of tangible property and a service in which tangible property was merely incidental.

Likewise, in BJ-Titan Services v. State Tax Commission, 842 P.2d 822 (Utah 1992), the Utah Supreme Court dealt with the difficult boundary between taxable tangible property and nontaxable services and discussed the state's "essence of the transaction" and "ultimate user or consumer" approaches.

That is the sort of dispute H.R. 25 would have to address on a national scale.

What happens when the plumber says the customer bought a service?

What happens when the plumber says the customer bought materials plus labor?

What happens when the software company sells a subscription?

What happens when the doctor provides medicine as part of a treatment?

What happens when an attorney sells advice?

What happens when artificial intelligence provides a service?

What happens when a business buys something that is partly for business and partly for personal use?

The bill has answers to some of these questions but/and it does not eliminate the need to argue about them.

The Supreme Court Has Already Been Down This Road

The good news is that there is a substantial body of sales-tax constitutional law. The bad news is that it demonstrates just how complicated interstate taxation can become.

In National Bellas Hess, Inc. v. Department of Revenue, 386 U.S. 753 (1967), the Supreme Court held that Illinois could not require an out-of-state mail-order company with no physical presence in Illinois to collect Illinois use tax.

The world, however, changed.

In Quill Corp. v. North Dakota, 504 U.S. 298 (1992), the Court retained the Commerce Clause physical-presence rule for state sales-tax collection even though its Due Process analysis had evolved. The Court expressly noted that Congress possessed the power to resolve the interstate taxation problem.

Then came the internet.

In South Dakota v. Wayfair, Inc., 585 U.S. 162 (2018), the Court overruled the physical-presence rule of Quill and permitted states to require certain remote sellers to collect sales tax based upon economic connections to the state.

In Complete Auto Transit, Inc. v. Brady, the Supreme Court established a four-part test for determining whether a state tax involving interstate commerce violates the Commerce Clause. The tax must apply to an activity with a substantial nexus to the taxing state, be fairly apportioned, not discriminate against interstate commerce, and be fairly related to services provided by the state. Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 279 (1977).

H.R. 25 is not operating in a constitutional vacuum. It is stepping into a constitutional minefield that the Supreme Court has spent decades mapping.

The Really Interesting Part: Destination

H.R. 25 uses a destination principle. For tangible personal property, the destination generally is where the property is first delivered to the purchaser. Real property is taxed according to where the property is located. Other property generally follows the purchaser's residence, while services have their own destination rules as per H.R. 25 § 405.

Why does that matter?

Because the question becomes: Which state gets the money?

Suppose a company in Utah sells something to a customer in New York. Utah collects it. New York claims it. The seller ships it from Nevada and the customer uses it in Florida.

Welcome to the tax lawyer's version of Clue.

H.R. 25 therefore creates a federal Office of Revenue Allocation to resolve disputes among administering states concerning where taxable property or services are destined. Its decisions would be subject to judicial review in federal court under an abuse-of-discretion standard under H.R. 25 § 405(i).

So, yes, the IRS is being abolished but federal courts, federal regulations, the Treasury Department and a federal Office of Revenue Allocation remain part of the scenery.

What About Regulations?

Here is an important distinction. There are no H.R. 25 implementing regulations yet because H.R. 25 is not law. But the bill anticipates a substantial regulatory structure if enacted.

The Treasury Secretary would have authority to promulgate regulations concerning administration, uniformity, interstate taxation, imported goods, definitions and other matters.

The bill even requires most federal regulations to be published in the Federal Register and generally delayed for 90 days before taking effect, subject to an emergency exception as per H.R. 25 § 406.

Oh, and state tax administrators would still have their own rules and procedures.

That creates an interesting legal question: How much "national" sales tax can you have when somebody else is doing the administering?

H.R. 25 attempts to answer that by making federal rules controlling when federal and state rules conflict. And while that all sounds uniform, it also means that the supposedly simple national sales tax could generate an entirely new body of federal regulations interpreting what "taxable," "consumer," "service," "business," "investment," "export," "intermediate sale" and dozens of other terms mean.

The tax code may get shorter but the regulations may not.

Oh and Don't Forget About the Audits

This is another myth worth killing. A national sales tax does not mean nobody gets audited.

H.R. 25 gives the sales-tax administering authority authority to issue administrative summonses and conduct examinations and audits of people who may be liable to collect and remit the tax.

Businesses must maintain specified records for six years as per H.R. 25 §§ 507–508.

Oh, and don't forget about the penalties.

For example:

knowingly or recklessly accepting a false intermediate or export certificate can trigger a penalty of 20 percent of the uncollected tax;
late remittance can result in a penalty of 1 percent per month, up to 24 percent;
false rebate claims can result in a civil penalty of at least $500 or 50 percent of the improperly claimed amount;
certain false rebate claims can also carry criminal penalties of up to one year imprisonment.

as per H.R. 25 § 504.

So the IRS may disappear; auditors do not. They just may be wearing state badges.

The Family Consumption Allowance

H.R. 25 attempts to address one of the biggest criticisms of a consumption tax: poorer households generally spend a greater proportion of their income on necessities. The bill therefore creates a monthly Family Consumption Allowance, commonly called the "prebate."

Under this "prebate," a qualifying family would receive a monthly amount calculated by multiplying the federal sales-tax rate by the applicable monthly poverty level.

But there is a catch here, too. The family has to register.

Under H.R. 25 § 301–305, the registration requires information including the names and Social Security numbers of family members sharing the household.

So the system that says: "You don't have to deal with the IRS anymore" still requires Americans who want their monthly federal consumption allowance to register with the sales-tax administering authority.

Again: Different tax system. Different paperwork.

So, What Could Possibly Go Wrong?

Now we get to the part every reasonable taxpayer should be asking about. Not because H.R. 25 is necessarily evil. Not because the current tax system is wonderful. But because every complicated government system eventually encounters the law of unintended consequences.

1. The "23 percent" problem

The 23-percent rate is tax-inclusive. On a conventional tax-exclusive basis, it is approximately 30 percent. That distinction could become a political and consumer-relations headache.

2. The state bureaucracy problem

Instead of one primary federal tax administrator, taxpayers could be dealing with state agencies administering a federal tax under federal regulations. That could produce substantial differences in administration, enforcement culture and taxpayer experience. The Tax Foundation has specifically identified this concern, noting that taxpayers could effectively encounter as many as 51 administering agencies rather than one IRS.

3. The "what is a service?" problem

The more the economy moves toward services, subscriptions, digital products, artificial intelligence and hybrid transactions, the harder it becomes to draw a bright line around taxable consumption. State courts already struggle with this problem. A national system will not make the question disappear.

4. The state-tax stacking problem

Nothing in H.R. 25 abolishes state and local taxation. As I noted above, a federal consumption tax could very well coexist with state and local sales taxes. The cash register could become a rather crowded neighborhood.

5. The evasion problem

A very high retail tax creates a substantial incentive to avoid the tax.

Buy used instead of new.
Buy from someone who does not collect.
Buy across borders.
Pay cash.
Barter.
Call a taxable sale a "service."
Call a service a "business input."

The higher the tax, the more valuable avoidance becomes. The bill therefore contains substantial enforcement provisions which brings us right back to audits, records, penalties and government enforcement; none of which address the obvious black market this bill would create.

6. The "Congress can change its mind" problem

Perhaps the most interesting constitutional wrinkle is the Sixteenth Amendment. H.R. 25 states that Congress finds that the Sixteenth Amendment should be repealed.

Wait, what?! Why get rid of the 16th Amendment?

There is nothing defective about the 16th Amendment that requires repeal. H.R. 25's sponsors simply want it repealed for a strategic reason: to prevent a future Congress from bringing back a federal income tax after the Fair Tax has replaced it.

Confused? Let me break this down for you.

The Sixteenth Amendment says:

“The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States…”

The Supreme Court has repeatedly explained that the Amendment removed the constitutional obstacle that Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429 (1895), 158 U.S. 601 (1895), had created for federal income taxation. In Brushaber v. Union Pacific Railroad Co., 240 U.S. 1 (1916), the Court explained that the Amendment confirmed Congress's ability to impose income taxes without apportionment.

So why does H.R. 25 want it gone? Because repealing the Internal Revenue Code is not the same thing as repealing the constitutional power to tax income. H.R. 25 would repeal the federal income-tax statutes, but the Sixteenth Amendment would remain sitting in the Constitution.

That means a future Congress could theoretically say: "Well, we tried this national sales-tax thing and it didn't work. Let's enact an income tax again." And Congress wouldn't first have to amend the Constitution to obtain the power to tax income. The constitutional authority would already be there.

That is precisely why H.R. 25 contains its rather extraordinary seven-year sunset provision. Section 401 provides that if the Sixteenth Amendment isn't repealed within seven years after enactment, the Fair Tax provisions eventually terminate.

Basically, H.R. 25 sponsors want to remove the safety net under their high wire act.

The Bottom Line

There is nothing inherently unconstitutional about Congress replacing one method of federal taxation with another. The Constitution gives Congress broad taxing authority, subject to constitutional limitations.

Nor is there anything inherently sinister about allowing states to administer a federal tax. Congress has used federal-state cooperative arrangements in numerous areas of government.

The interesting question is whether the proposed system would actually be simpler for Americans. And it might be.

It might also turn the United States into a nationwide sales-tax laboratory in which 50 states, federal regulators, federal courts, state courts, businesses and taxpayers spend the next decade litigating what exactly constitutes taxable consumption.

And that is the part worth watching.

So, while the IRS may be leaving the stage, the Treasury, state tax agencies, auditors, federal regulations, state regulations, federal courts, state courts, record keeping requirements, penalties and a brand-new Sales Tax Bureau are just waiting in the wings to snatch up your disposable income.

Essentially, same government, new cash register. And if that sounds suspiciously like the plot twist at the end of a tax-law thriller, well...welcome to the National Sales Tax!

Legal Myth Monday: Can the Law Catch the AI Machine?

noreply@blogger.com (Mr. Librarian) — Mon, 28 Sep 2026 07:00:00 +0000

Artificial intelligence has been around considerably longer than the current panic over it. What has changed is that AI has moved from something largely confined to laboratories, universities, and specialized industries into something an ordinary person can carry around in a pocket.

And that creates a rather interesting legal problem.

Legislatures are discovering that AI can write, draw, imitate voices, make decisions, generate evidence, screen job applicants, analyze medical information, produce legal briefs, create convincing fake images, and sometimes confidently announce things that are completely untrue.

Kinda like how CNN does business.

Naturally, governments have begun doing what governments traditionally do when technology outruns the law: They are writing laws and creating legislation. Whether those laws actually solve the problems they are intended to solve is another question entirely.

So, this week's Legal Myths Monday takes a look at fifteen common assumptions about AI and fifteen jurisdictions already attempting to answer them.

1. UTAH

Myth: “If I am talking to an AI, the law doesn't care whether I know it is a machine.”

Reality: Not necessarily.

Explanation

Utah was one of the earliest states to impose a specific disclosure requirement on certain uses of generative AI.

The Utah Artificial Intelligence Policy Act requires disclosure in certain regulated-occupation and consumer-protection contexts. A person using generative AI in connection with regulated services must disclose that the person is interacting with AI, including disclosure at the beginning of an oral exchange and before a written exchange.

The law does not mean every conversation with ChatGPT requires a flashing neon sign announcing, “THIS IS A ROBOT.” The obligation depends upon the statutory circumstances.

Related Authority:

Utah Artificial Intelligence Policy Act, Utah Code Ann. tit. 13, ch. 72 (2024).

What this authority is about:

Utah created an Office of Artificial Intelligence Policy and established a regulatory framework dealing with AI, including consumer protection, disclosure, regulatory mitigation, and an AI regulatory-learning laboratory.

How this authority is being applied: Utah's approach is notable because it attempts to regulate AI without simply banning it. The state created a regulatory-mitigation system through which qualifying AI developers can test systems under specified conditions while obtaining temporary relief from certain regulatory requirements.

Potential problem:

Disclosure rules sound simple until someone has to determine when disclosure is legally required, what counts as sufficient disclosure, and how much disclosure becomes so ubiquitous that consumers simply stop noticing it.

At some point, “You are interacting with AI” could become the digital equivalent of the 47-page terms-of-service agreement nobody reads.

Cheeky Reality Check:

Utah didn't outlaw the robot. It simply told the robot to introduce itself.

2. COLORADO

Myth: “If an AI system discriminates, the computer, not the company, is responsible.”

Reality: No. Colorado's law looks to the developer and deployer.

Explanation

Colorado's AI law addresses what happens when a high-risk AI system produces discriminatory outcomes.

The statute places duties on both developers and deployers and requires reasonable care concerning known or reasonably foreseeable risks of algorithmic discrimination.

Related Authority

Colo. Rev. Stat. §§ 6-1-1701 to -1707 (2024), as enacted by S.B. 24-205, Consumer Protections for Artificial Intelligence.

What this authority is about

Colorado's framework focuses particularly on high-risk AI systems used in consequential areas such as employment, financial services, housing, education, insurance, and other decisions affecting individuals.

Among other things, developers must provide information and documentation allowing deployers to conduct impact assessments, and developers must disclose certain known or reasonably foreseeable discriminatory risks.

How this authority is being applied

The principal operative provisions began taking effect in 2026. The law attempts to create a compliance structure rather than waiting for a discriminatory AI system to cause harm and then trying to determine who should have known what.

Potential problem

The difficult question is not necessarily whether discrimination is bad. Everyone agrees on that.

The difficult question is how much responsibility can realistically be assigned to a developer for an AI system after a third party deploys it in circumstances the developer did not anticipate?

The more expansive the liability standard becomes, the more developers may respond by restricting what their systems can do rather than making them more useful.

Cheeky Reality Check

The computer may make the decision but Colorado still knows where the developer lives.

3. CALIFORNIA

Myth: “California tried to regulate AI, so AI companies now have to get government permission before releasing a model.”

Reality: Not under California's enacted frontier-AI law.

Explanation

California's earlier attempt at sweeping frontier-model regulation became nationally controversial. But the law that ultimately took effect was SB 53, the Transparency in Frontier Artificial Intelligence Act.

It focuses heavily on transparency, safety frameworks, reporting, and whistleblower protections rather than requiring the government to approve every AI model before release.

Related Authority

Cal. Bus. & Prof. Code §§ 22757.10–22757.14 (2025).

What this authority is about

SB 53 requires qualifying frontier AI developers to establish and publish AI safety frameworks. Large frontier developers must address catastrophic-risk thresholds, mitigation measures, incident response, and other safety considerations.

The statute also creates reporting mechanisms and protections for covered employees who disclose qualifying safety concerns.

How this authority is being applied

The statute became effective January 1, 2026. Large frontier developers are required to publish their frameworks, and frontier developers have transparency-report obligations concerning new or substantially modified frontier models.

Potential problem

Transparency is useful only to the extent that the information disclosed is meaningful.

A 200-page safety document can technically provide transparency while still leaving an ordinary member of the public with absolutely no idea what the AI actually does.

Cheeky Reality Check

California didn't put a leash on the robot. It made the robot file paperwork explaining why it thinks it needs one.

4. ILLINOIS

Myth: “An employer can use AI to hire, fire, or promote people without telling them.”

Reality: Illinois says AI-assisted employment decisions remain subject to civil-rights law—and notice may be required.

Explanation

Illinois amended its Human Rights Act to specifically address AI in employment.

The statute prohibits employers from using AI in employment-related decisions when the use has the effect of subjecting employees to discrimination based upon protected classifications. It also requires notice to employees when AI is used for specified employment purposes.

Related Authority

775 Ill. Comp. Stat. 5/2-102(L) (2026); 775 Ill. Comp. Stat. 5/2-101(N)–(O).

What this authority is about

The Illinois law expressly defines artificial intelligence and generative AI and applies existing employment-discrimination principles to AI-assisted employment decisions.

How this authority is being applied

The provisions became effective January 1, 2026. The Illinois Department of Human Rights is responsible for adopting implementation rules concerning when notice is required and how that notice must be given.

Potential problem

AI can reproduce discrimination found in the data used to train or operate it. But the reverse problem also exists: a system designed to eliminate human subjectivity can itself become so complicated that an employer may have difficulty explaining exactly why a candidate was rejected.

That creates a familiar legal problem in a new technological costume: Who has to explain the decision when nobody (not even the employer) fully understands the model's reasoning?

Cheeky Reality Check

Illinois has effectively told employers: If the robot is going to reject the applicant, somebody better know why.

5. TENNESSEE

Myth: “Your voice cannot be stolen because a voice isn't your name or image.”

Reality: Tennessee says your voice can be legally protected as part of your identity.

Explanation

Traditional right-of-publicity laws generally focused on a person's name, image, likeness, or similar identifiers.

Generative AI changed the equation because a system can reproduce a person's voice without recording that person saying the new words.

Tennessee responded directly.

Related Authority

Tenn. Code Ann. §§ 47-25-1101 to -1108 (2024), Ensuring Likeness, Voice, and Image Security Act (ELVIS Act).

What this authority is about

The ELVIS Act expanded Tennessee's right-of-publicity protections to include a person's voice and specifically addresses AI-generated replicas.

How this authority is being applied

The statute provides remedies for unauthorized use of protected identity attributes, including AI-generated voice replicas.

Potential problem

The difficult line is between identity theft and artistic expression.

What happens when someone creates an obvious parody of a famous singer? What about commentary, satire, imitation, or an AI-generated character that merely sounds remarkably similar?

The statute contains exceptions and defenses, but the collision between publicity rights and free expression is likely to generate litigation.

Cheeky Reality Check

Apparently, in Tennessee, your voice now has a lawyer.

6. VIRGINIA

Myth: “If AI recommends a criminal sentence, the judge can simply rubber-stamp the recommendation.”

Reality: Virginia requires a human decision-maker.

Explanation

Virginia has specifically addressed AI-assisted criminal-justice decisions.

The law does not permit AI to become the judge, probation officer, or parole authority simply because a computer-generated recommendation looks mathematically impressive.

Related Authority

Va. Code Ann. § 19.2-11.14 (2025).

What this authority is about

The statute provides that decisions concerning pretrial detention or release, prosecution, adjudication, sentencing, probation, parole, correctional supervision, or rehabilitation must be made by the responsible human decision-maker.

AI may provide recommendations or predictions, but the ultimate decision must involve a human.

How this authority is being applied

The statute expressly permits AI-based recommendations while preserving the human decision-maker's authority and allowing challenges or objections permitted by law.

Potential problem

“Human in the loop” sounds reassuring.

But a human decision-maker who routinely accepts a computer's recommendation without meaningful independent consideration may produce little more than human-shaped rubber stamping.

The statute therefore solves the easy problem: keeping a human involved without necessarily answering the harder question: How much independent judgment must the human exercise?

Cheeky Reality Check

Virginia has made one thing clear: The robot may advise the judge but the robot does not get the gavel.

7. NEW JERSEY

Myth: “A deepfake is protected speech simply because nobody was physically impersonated.”

Reality: Not necessarily. New Jersey has criminalized specified deceptive AI-generated audio and visual media.

Explanation

New Jersey enacted legislation specifically addressing deceptive audio and visual media—commonly called deepfakes.

The statute distinguishes unlawful deceptive media from protected criticism, commentary, satire, parody, news reporting, teaching, scholarship, and research.

Related Authority

N.J. Stat. Ann. §§ 2C:21-17.7 to -17.8 (2025).

What this authority is about

The law establishes criminal and civil liability for specified production, solicitation, use, and dissemination of deceptive audio or visual media, particularly when connected to enumerated crimes or other unlawful purposes.

How this authority is being applied

The law became part of New Jersey's criminal and civil-law framework in 2025. It also expressly preserves protections for certain expressive uses and maintains federal § 230 protections for qualifying providers.

Potential problem

The statute must draw a line between a lie designed to deceive and a fake designed to communicate that it is fake.

That sounds easy until satire enters the room.

A realistic parody can be almost indistinguishable from a malicious deepfake, particularly when it is removed from its original context and reposted elsewhere.

Cheeky Reality Check

The law recognizes that a fake can be dangerous. It also recognizes that sometimes the joke is supposed to be fake.

Apparently even New Jersey wants the jury to know the difference.

8. TEXAS

Myth: “Texas has decided that regulating AI means regulating everything AI does.”

Reality: Texas took a more targeted approach.

Explanation

Texas's 2025 Responsible Artificial Intelligence Governance Act identifies specific prohibited uses rather than declaring AI itself unlawful.

Among other things, it addresses intentional manipulation of human behavior, government social scoring, certain biometric-data uses, unlawful discrimination, and certain political-viewpoint-related AI conduct.

Related Authority

Tex. Bus. & Com. Code ch. 551 (2025), Texas Responsible Artificial Intelligence Governance Act, enacted by H.B. 149.

What this authority is about

The legislation establishes substantive restrictions, creates an enforcement structure, establishes an AI council, and creates a regulatory sandbox allowing qualifying AI systems to be tested under controlled circumstances.

How this authority is being applied

The principal provisions took effect January 1, 2026.

The Texas approach is particularly interesting because the law combines restrictions with a regulatory sandbox intended to permit experimentation while temporarily reducing certain regulatory barriers.

Potential problem

Texas illustrates the problem with trying to regulate AI through a list of prohibited conduct: AI changes faster than statutory definitions.

By the time legislators identify “the thing we are worried about,” the technology may have already moved several versions beyond it.

Cheeky Reality Check

Texas didn't tell AI to get off the ranch. It built a fence around certain things AI isn't supposed to do and created a sandbox for the things nobody has figured out yet.

9. NEW YORK

Myth: “If a lawyer uses AI to prepare a legal filing, nobody has to know.”

Reality: New York has considered legislation that would require disclosure.

Explanation

New York Assembly Bill A9097 would require disclosure of generative-AI use to clients, criminal defendants, and courts.

Importantly, this is proposed legislation, not an enacted statewide rule.

Related Authority

N.Y. Assemb. A9097, 2025–2026 Reg. Sess.

What this authority is about

The bill would amend New York procedural law to require specified disclosures when lawyers use generative AI.

How this authority is being applied

As of September 2026, the bill remains in committee rather than being an enacted statewide requirement.

Nevertheless, the proposal demonstrates one direction lawmakers are considering: treating disclosure of AI use as part of professional transparency.

Potential problem

Disclosure can tell the client that AI was used.

It does not necessarily tell the client whether the lawyer actually verified what the AI produced.

Those are two very different things.

Cheeky Reality Check

Telling the court, “Yes, I used AI,” is transparency. Telling the court, “And yes, I actually read what it wrote,” is competence.

10. MARYLAND

Myth: “Government agencies can use AI however they want because the government is the one doing it.”

Reality: Maryland has imposed governance requirements on its own government.

Explanation

Maryland's AI Governance Act requires state agencies to inventory and assess their AI systems and establishes governmental oversight mechanisms.

Related Authority

Md. Code Ann., State Gov't § 3.5-801 et seq. (2024), enacted through S.B. 818, Chapter 496.

What this authority is about

The law establishes requirements concerning governmental AI inventories, assessments, policies, procedures, and oversight.

How this authority is being applied

Maryland maintains a public accounting of state AI use and has created a governance structure for state deployment.

The state has also continued adding AI-specific programs and oversight measures.

Potential problem

Government transparency creates a useful record—but also creates a logistical question:

Who audits the auditors?

If an agency uses an AI system to make recommendations, someone has to evaluate the system, the data, the vendor, the implementation, and the agency's use of the recommendation.

Eventually, the oversight apparatus can become almost as complicated as the technology it is supposed to oversee.

Cheeky Reality Check

Maryland's solution to government AI is apparently: “Sure, government can use the robot. But government has to keep receipts.”

11. EUROPEAN UNION

Myth: “The EU AI Act bans artificial intelligence.”

Reality: No. It regulates AI according to risk.

Explanation

The EU Artificial Intelligence Act is perhaps the most comprehensive AI regulatory framework currently operating.

It does not simply say “AI is illegal.”

Instead, it establishes categories of prohibited practices, general-purpose AI obligations, transparency requirements, and additional obligations for high-risk systems.

Related Authority

Regulation (EU) 2024/1689, 2024 O.J. (L 2024/1689).

What this authority is about

The AI Act prohibits specified AI practices regarded as presenting unacceptable risks, imposes obligations on providers of general-purpose AI models, establishes transparency requirements, and creates additional requirements for high-risk systems.

How this authority is being applied

The Act's provisions are being implemented in stages.

As of August 2, 2026, major portions of the framework—including enforcement powers and transparency obligations—have become applicable. Other high-risk provisions do not apply until later transition dates, including 2027 and 2028.

Potential problem

The EU model demonstrates the problem with comprehensive legislation:

The larger the regulatory framework becomes, the more difficult it becomes for businesses—particularly smaller businesses—to determine exactly which provisions apply to them.

And unlike software, legislation does not update itself when the next model arrives.

Cheeky Reality Check

The EU didn't outlaw AI. It gave AI a regulatory passport, customs inspection, luggage search, and several forms to complete before entering the terminal.

12. CHINA

Myth: “China has no meaningful AI regulation because AI developed too quickly for government regulation.”

Reality: China was regulating generative AI before many Western jurisdictions had enacted AI-specific statutes.

Explanation

China's regulatory model is significantly different from the risk-based European approach.

China has already established rules governing generative AI services offered to the public.

Related Authority

Generative Artificial Intelligence Service Management Interim Measures, Order No. 15 of the Cyberspace Administration of China (effective Aug. 15, 2023).

What this authority is about

The rules regulate publicly available generative AI services and impose requirements involving training data, intellectual property, personal information, content moderation, security, transparency, and labeling.

Providers must take measures concerning unlawful content and may face regulatory consequences for violations.

How this authority is being applied

The rules have been in force since August 2023 and operate alongside China's broader cybersecurity, data-security, and personal-information regimes.

Potential problem

A regulatory system that requires AI providers to control generated content creates an obvious technical problem:

Generative AI is probabilistic.

A rule can say “do not produce X.”

The machine still has to determine what X is.

The more expansive the prohibited-content category becomes, the more complicated moderation becomes—and the greater the possibility of both overblocking and underblocking.

Cheeky Reality Check

China solved one AI problem the old-fashioned way: It told the AI what it is allowed to say. The harder part is getting the AI to agree.

13. SINGAPORE

Myth: “Deepfakes become legal if the creator puts a disclaimer on them.”

Reality: A disclaimer can matter, but it is not a universal legal shield.

Explanation

Singapore has enacted legislation addressing digitally manipulated and AI-generated material in the context of online harms.

Its Online Safety (Relief and Accountability) Act specifically recognizes generative AI as a technology capable of producing realistic deceptive depictions.

Related Authority

Online Safety (Relief and Accountability) Act 2025 (Sing.).

What this authority is about

The statute addresses harmful online material and includes provisions dealing with realistic manipulated or generated depictions of individuals.

The statutory framework recognizes that labeling may affect whether a depiction is realistically deceptive to a reasonable person.

How this authority is being applied

The law is part of Singapore's broader online-safety framework, with provisions coming into operation according to commencement orders.

Potential problem

A label can reduce deception.

But it cannot necessarily undo the damage caused when millions of people see the image before they see the label or when the image is copied, cropped, reposted, or stripped of its original context.

Cheeky Reality Check

“AI-generated” may save the label but it doesn't necessarily save the reputation.

14. UNITED KINGDOM

Myth: “Britain has already enacted one giant AI law equivalent to the EU AI Act.”

Reality: The British approach has been considerably more fragmented—and continues to evolve.

Explanation

The United Kingdom has pursued AI regulation through existing regulators, sector-specific legislation, consultations, proposed bills, and targeted amendments rather than simply reproducing the EU's comprehensive AI Act.

One particularly important recent development concerns AI-generated intimate imagery.

Related Authority

Data (Use and Access) Act 2025, c. 18, § 138 (U.K.); Sexual Offences Act 2003 provisions concerning purported intimate images.

What this authority is about

The legislation creates offenses concerning the creation or requesting of purported intimate images of adults without consent or reasonable belief in consent. The statutory concept expressly encompasses images that appear to depict a person but are not authentic photographs or films of that person.

How this authority is being applied

The law provides a direct criminal-law response to one of the most obvious harmful uses of generative AI: creating realistic intimate images of people who never consented to their creation.

At the same time, the UK continues to examine broader questions involving AI and copyright, including AI training on copyrighted material.

Potential problem

The British approach demonstrates a different problem from the EU model. Instead of one comprehensive statute, regulation may emerge from numerous laws and regulators.

That can produce flexibility but also creates a legal scavenger hunt for businesses and citizens trying to determine which rule governs which AI activity.

Cheeky Reality Check

Britain apparently looked at the EU AI Act and said: “That's a lot of legislation. Let's distribute the fun.”

15. AUSTRALIA

Myth: “If AI regulation has not been enacted yet, Australia has no legal position on AI.”

Reality: Australia is building a regulatory framework while simultaneously wrestling with AI, copyright, data centers, and training data.

Explanation

Australia provides an excellent example of the problem you identified at the beginning of this article: legislation frequently arrives after the technology has already changed the legal landscape.

Australia has been developing mandatory AI guardrails while maintaining a voluntary AI Safety Standard and considering copyright reforms concerning AI training.

Related Authority

Australian Department of Industry, Science and Resources, Voluntary AI Safety Standard (2025); Australian Government, “AI in Australia's interests” (July 15, 2026); Copyright and AI consultation and 2026 government report.

What this authority is about

Australia's voluntary AI Safety Standard establishes ten guardrails involving accountability, risk management, transparency, testing, human oversight, and related safeguards.

The Australian government has also announced plans for a mandatory AI framework and standards.

Meanwhile, the government continues to confront the difficult copyright question: Can AI developers train models on copyrighted Australian material without permission or compensation?

How this authority is being applied—or will be applied

The voluntary standard currently provides a framework for organizations using AI.

The government has announced a future mandatory framework, while copyright policy remains under active development.

As of September 2026, Australia is also considering how copyright law should address AI training and whether creators should receive compensation for use of their works.

Potential problem

This may be the most fundamental AI-regulation problem of all:

The law is trying to regulate the training of machines that may have been trained before the law was written.

If lawmakers require permission for every piece of copyrighted material used in training, the administrative burden could be enormous.

If they create broad exceptions, creators may argue that the law has effectively converted their work into free raw material for AI companies.

And if they impose compensation mechanisms, someone has to determine who gets paid, how much, and for what contribution.

Cheeky Reality Check

Australia has discovered the ultimate AI question: Before you regulate what the machine learns, you have to figure out who owns the textbook.

Final Check

The great irony of AI regulation is that legislators are attempting to write permanent rules for a technology that may look completely different by the time the ink dries.

The goal of regulation may be entirely reasonable: protect people from discrimination, fraud, identity theft, manipulation, privacy violations, and other harms.

But legislation can also create compliance costs, conflicting obligations, jurisdictional fragmentation, overbroad restrictions, false confidence, and rules aimed at yesterday's technology.

In other words, government may eventually succeed in regulating AI. The question is whether AI will still be the same thing by the time government catches it.

Who Watches the Watchers? Congress, Jack Smith, and the Constitutional Cloak

noreply@blogger.com (Mr. Librarian) — Mon, 21 Sep 2026 07:00:00 +0000

There is something particularly uncomfortable about a prosecutor being questioned about whether the government crossed a constitutional line.

The government investigates. Congress investigates the government. And eventually, the investigator himself becomes the subject of the investigation.

That is roughly where former Special Counsel Jack Smith finds himself.

The controversy concerns an FBI investigation known as Arctic Frost, which began in April 2022 and was later folded into the investigation overseen by Smith after he was appointed special counsel in November 2022. Among other things, investigators obtained telephone records belonging to members of Congress, including numerous Republican lawmakers, during an investigation into efforts to interfere with the 2020 presidential election.

The records were generally described as toll records: information showing numbers called, numbers received, dates, times, and duration—not the substantive content of the calls. That distinction matters.

So does something else.

The Constitution has a provision specifically designed to prevent the executive branch from using its investigative power to interfere with Congress's legislative work.

It is called the Speech or Debate Clause and it is hiding in plain sight.

So, uh, the Speech or Debate Clause. What's That?

The Speech or Debate Clause is found in Article I, § 6, cl. 1 of the United States Constitution. It provides:

“for any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other Place.”

The provision is not merely a constitutional version of parliamentary courtesy. It is a separation-of-powers provision.

The Framers understood the danger of allowing the executive or judiciary to intimidate legislators for doing the job the Constitution assigned to them. The Supreme Court has therefore interpreted the clause broadly enough to protect more than words spoken on the House or Senate floor.

In Gravel v. United States, 408 U.S. 606 (1972), the Supreme Court explained that the protection extends to acts that are an integral part of the deliberative and communicative processes by which members participate in congressional proceedings.

In Eastland v. United States Servicemen's Fund, 421 U.S. 491 (1975), the Court likewise recognized congressional investigation—including the issuance of subpoenas—as falling within the legitimate legislative sphere when Congress is exercising its investigative authority.

The principle is therefore broader than:

“Congressmen can't be sued for something they say during a speech.”

Rather, it is closer to:

“The other branches generally cannot interfere with legitimate legislative acts simply because they dislike, disagree with, or want to investigate those acts.”

That distinction becomes important when the government's investigative machinery begins examining a congressman's communications.

So, Does the Clause Protect a Congressman's Phone Records?

This is where the story gets considerably more complicated. The answer is not automatically.

The Speech or Debate Clause does not place every piece of information belonging to a member of Congress inside a constitutional vault.

The Supreme Court's test is functional and examines whether the particular activity was a legislative act?

That question was squarely presented when the government seized Representative Scott Perry's cellphone during the January 6 investigation.

In In re Sealed Case, 80 F.4th 355 (D.C. Cir. 2023), the D.C. Circuit held that the Speech or Debate Clause required a fact-specific examination of Perry's communications. Some communications concerning legislative activity—including communications with other members about the 2020 election-certification vote—could be protected. Other communications were not automatically protected merely because Perry was a member of Congress.

That case is important because it prevents an overly simplistic argument. So, the constitutional question isn't:

“Was the person a member of Congress?”

But is:

“What was the member doing, and was that activity legislative?”

The D.C. Circuit put it plainly: the inquiry must be conducted communication by communication under the test established in Gravel.

And that brings us back to Arctic Frost.

The Arctic Frost Phone Records

During the investigation, federal investigators obtained telephone records relating to members of Congress. Some requests covered a relatively narrow period surrounding January 6, 2021. Others reportedly covered considerably longer periods.

The government's stated investigative interest was not simply whether members of Congress were talking to someone. Investigators were attempting to determine who was communicating with whom concerning efforts to influence the electoral-certification process.

That provides the government's side of the constitutional argument.

If investigators were attempting to determine whether a crime had been committed, and the telephone records merely established communications between individuals, the government could argue that it was obtaining ordinary investigative evidence rather than interrogating a member about a legislative act.

But there is an obvious constitutional problem on the other side: Who a legislator communicates with (and when) can reveal what is happening inside the legislative process.

A phone record showing that a senator spoke with a particular person immediately before a congressional vote does not tell the government what was said. But it may tell the government something about the legislator's legislative activity. That is precisely why the Speech or Debate Clause exists.

And it is why the issue is not nearly as simple as saying either “phone records aren't protected” or “Congressmen's phone records are absolutely protected.”

The existing case law requires a much more precise inquiry.

Then Jack Smith Had to Explain It to Congress

Jack Smith was subpoenaed by the House Judiciary Committee and ultimately gave a closed-door deposition on December 17, 2025. During that deposition, Smith defended the acquisition of toll records and maintained that his office took the Speech or Debate Clause seriously.

He also maintained that the toll records themselves did not contain the content of calls or messages. That distinction would become extremely important. Because the controversy eventually moved beyond what the government obtained to what Smith told Congress about what the government obtained.

In July 2026, Chairman Jim Jordan referred Smith to the Department of Justice for possible prosecution. The referral alleges that Smith's sworn testimony created the impression that neither he nor his team had obtained or reviewed the contents of lawmakers' text messages.

Subsequently released records, according to the committee, indicated that Smith's investigative team had in fact accessed the content of messages involving more than 40 members of Congress and White House personnel, including material that had been subject to a DOJ “filter team” intended to screen potentially privileged material.

Smith's attorneys dispute that characterization, arguing that the questioning concerned particular subpoenas and toll records rather than every source of information that investigators might have possessed.

And that distinction is legally significant. Because being incomplete, evasive, confusing, or even misleading is not automatically the same thing as committing perjury or making a prosecutable false statement.

The government would have to prove the elements of an actual offense.

What Law Makes Lying to Congress a Crime?

There are several possibilities. The most obvious is perjury.

Under 18 U.S.C. § 1621, a person who, after taking an oath to testify truthfully, willfully makes a material statement that the person does not believe to be true can be convicted of perjury and face up to five years' imprisonment.

There is also 18 U.S.C. § 1001, the federal false-statements statute.

This statute is particularly interesting because Congress specifically amended it in 1996 to cover false statements made in matters within the jurisdiction of Congress and the legislative branch.

The basic requirements are not simply:

“Someone said something wrong.”

The government generally must establish a knowingly and willfully false statement concerning a material matter within the statute's jurisdiction. That is a substantially higher bar than proving that congressional testimony was inaccurate.

And that is where the word “knowingly” becomes the star of the show.

If Smith misunderstood a question, forgot something, answered a narrower question than the questioner intended, or accurately described one category of records while failing to volunteer information about another, that is one thing.

If, on the other hand, the evidence established that he knew a material statement was false and deliberately made it anyway, the legal landscape would be very different.

What About Contempt of Congress?

There is another misconception worth clearing up. Congressional contempt is not simply the statutory penalty for lying.

Under 2 U.S.C. § 192, a witness who is summoned before Congress and willfully refuses to testify or refuses to answer a pertinent question can commit a misdemeanor. In other words, contempt traditionally concerns things such as: I refuse to answer.

It is not simply: I answered, but Congress believes I lied.

False testimony presents a different legal problem. Congress can refer alleged criminal conduct to the Department of Justice. It can also use its institutional powers to investigate and, under certain circumstances, employ its contempt authority.

But a congressional committee does not simply declare: You lied. You're guilty because criminal guilt remains a matter for the criminal-justice system.

So Should Jack Smith Have Been Sanctioned?

This is where the answer needs a lawyer's annoying but necessary qualifier:

If the evidence establishes that Smith knowingly made materially false statements under oath, then there were (and are) legal mechanisms for holding him accountable.

The existence of those mechanisms is not hypothetical. The House Judiciary Committee has already used one of them: a criminal referral to the Department of Justice.

But whether Smith actually committed perjury or violated § 1001 depends upon facts that must be established, not merely upon the existence of conflicting descriptions of his testimony and the underlying records.

That distinction matters because the law does not criminalize every misleading statement.

For perjury, the government would need to prove the necessary elements, including the oath, falsity, materiality, and the requisite knowing and willful state of mind. For § 1001, the government would likewise have to establish a materially false statement made knowingly and willfully.

The question therefore isn't simply: Did Jack Smith mislead Congress? Rather, the legally useful question is: Did Jack Smith knowingly and willfully make a materially false statement to Congress?

Those are two very different questions.

And Then There Is the Bigger Constitutional Question

The most fascinating part of this story may actually be separate from whether Smith's congressional testimony was truthful. It is whether the government's acquisition of congressional communications properly accounted for the Speech or Debate Clause in the first place.

The D.C. Circuit's decision in In re Sealed Case demonstrates why.

The constitutional protection is functional. Some congressional communications are protected because they are legislative acts. Others are not. And when government investigators seize or obtain communications that may contain protected legislative material, the Constitution requires more than simply saying: Trust us. We'll sort it out later.

In United States v. Rayburn House Office Building, Room 2113, 497 F.3d 654 (D.C. Cir. 2007), the D.C. Circuit held that the Executive Branch had to provide a member an opportunity to assert Speech or Debate protection before reviewing materials likely to contain privileged legislative material.

That principle became part of the procedural backdrop to the Perry litigation and is one reason the constitutional issue deserves more attention than the shorthand phrase “phone records.”

Because the real question is not merely whether the government knew who called whom. It is whether the government's investigative process intruded upon the constitutional sphere Congress is entitled to occupy without executive interference.

The Irony of the Constitution

There is a delicious constitutional irony here.

The Speech or Debate Clause was designed to protect Congress from the other branches.

Congress investigates the Executive Branch. The Executive Branch investigates people connected to Congress. Congress then investigates the Executive Branch's investigation. And eventually the investigator is subpoenaed by Congress to explain what happened.

That circularity is not necessarily a constitutional defect. It is, in part, the constitutional system doing what it was designed to do: checking power with power.

But the same system also demands something less exciting and considerably more important: evidence.

The constitutional question surrounding the congressional phone records deserves serious examination and so does the question of whether congressional testimony crossed the line from an incomplete explanation into a knowingly false statement.

Those questions should not be answered by political allegiance. They should be answered by the Constitution, the statutes Congress enacted, and the evidence.

And those three things don't always produce the answer social media wants.

An Uncomfortable Reality Check

The Speech or Debate Clause isn't a congressional invisibility cloak. It doesn't mean a member of Congress can commit a crime and announce, “I'm legislating.” But neither is a congressional badge a constitutional bullseye.

The Framers deliberately built a wall around legitimate legislative activity because they understood that a legislature cannot remain independent if the executive branch can investigate the legislators every time it dislikes what they are doing.

And there is an equally important rule on the other side of that wall:

If you voluntarily walk into Congress, raise your hand, swear to tell the truth, and start answering questions, the Constitution does not hand you a magic eraser for inconvenient facts.

For Jack Smith, that may ultimately be the more uncomfortable constitutional question. The man who once stood on the government's side of the subpoena is now on the receiving end of one.

And this time, Congress is holding the subpoena.

This sounds paranoid but: Trust no one

noreply@blogger.com (Mr. Librarian) — Mon, 14 Sep 2026 07:00:00 +0000

I really like writing this blog and I've been writing it on and off for about 14 years.

That's right - 14 YEARS!

Some topics are better than others but what has really been helpful is this new AI set up they have going.

Specifically, Chatgpt has come in handy helping with identifying topic, cases, and statutes relevant to the topics I'm writing about.

The problem with these AI search engines like ChatGPT is that you can't really depend on them for accuracy when researching law or things of a legal nature. Sometimes, it even creates cases out of thin air.

Wait, what?!

You mean to tell me that AI search engines spit out caselaw that doesn't even exist or out and out misleads researchers?!

Called Hallucinations and yes, that's exactly what I mean.

Because LLMs (i.e. "Large Language Models" which is the official classification for AI platforms) create hallucinations with reckless abandon, you have to be extra careful when using anything you find on an AI search engine.

For example, do you remember Mata v. Avianca, Inc., No. 22-CV-1461 (PKC), 2023 WL 4114965 (S.D.N.Y. June 22, 2023)? In Mata, lawyers submitted a brief with six case citations (and quotes) that did not exist; they were generated/made up by ChatGPT. The court imposed a $5,000 fine on the lawyers and their firm (which is peanuts). The judge found they acted in bad faith, including conscious avoidance of verifying the non-existence when there were signs the cases might be fake.

Or how about United States v. Cohen, 724 F. Supp. 3d 251 (S.D.N.Y. 2024). In that case Michael Cohen admitted he had given his lawyer fake citations generated by Google Bard. The lawyer then submitted them. The court called the inclusion of the fake cases “embarrassing and certainly negligent, perhaps even grossly negligent.” But the judge determined there was no intention to deceive, i.e., not in bad faith, so no sanctions were imposed.

Other cases where attorneys used holographic cases (ie. cases generated by AI search engines that don't exist) include:

Garner v. Kadince, 20250188-CA (Utah Ct. App., filed May 22, 2025): Their petition included case-citations that were found to be fabricated or “hallucinated” by AI (ChatGPT). One example: Royer v. Nelson, 2007 UT App 74, 156 P.3d 789, a case that does not exist in any legal database except in AI outputs.

Wadsworth v. Walmart (D. Wyo. 2025): Three lawyers cited fake cases that were AI-generated in a personal injury lawsuit against Walmart.

Alabama Prison Litigation (2025): Butler Snow firm cited entirely fabricated Eighth Amendment cases.

My personal opinion is that any attorney that doesn't Shepardize ALL cases cited in legal documents should be, in the very least, suspended for at least a 6 months. They should also be required to pass the Multistate Professional Responsibility Exam (aka MPRE) before being again allowed to practice law.

But how does this all affect me, the legal blogger?

Over the last year, I've blogged about a whole range of legal topics. In a few instances, I've found, through ChatGPT and other AI search engines, not a few discrepancies.

For example, recently I wrote a blog about tailgating and after running a search in ChatGPT for cases related thereto, I got a number of cases back presumably on the subject.

One case in particular, Shuck v. Means, was particularly difficult to locate on the Internet and I asked ChatGPT:

is Shuck v. Means, 302 P.2d 217 (Okla. 1956) a real case and does it have anything to do with tailgating

To which ChatGPT responded:

You're in for a quick clarification—“Shuck v. Means, 302 P.2d 217 (Okla. 1956)” does not appear to be a real case, at least not under that name or citation.

A few paragraphs later, I ran into a similar problem when after a query ChatGPT returned a case (in this instance, Baker v. Rushing). After an extensive search on the Internet of not finding that case, I asked ChatGPT:

is Baker v. Rushing, 104 S.E.2d 165 (N.C. 1958) correct in this format

To which Chatpgt responded:

Yes — that citation format is correct. Here’s the breakdown:

Case Name: Baker v. Rushing

Reporter Volume: 104

Reporter Abbreviation: S.E.2d (South Eastern Reporter, Second Series)

Page Number: 165

Court and Year: (N.C. 1958) → North Carolina Supreme Court, 1958

So it should appear as:

📖 Baker v. Rushing, 104 S.E.2d 165 (N.C. 1958).

That is a valid, properly formatted Bluebook citation.

Now, to the untrained eye, that would look like this is a real/actual case and a rookie researcher would stop there. I mean, it says it's the right Bluebook format - so that should mean it's a real case. However, after I couldn't find Baker v. Rushing, 104 S.E.2d 165 (N.C. 1958), I went back to ChatGPT and again asked:

is Baker v. Rushing, 104 S.E.2d 165 (N.C. 1958) a real case

To which Chatgpt responded:

Great question — “Baker v. Rushing, 104 S.E.2d 165 (N.C. 1958)” does not appear to be a valid or real case citation, at least based on available legal databases and authoritative sources.

...which is annoying - and definitely misleading - given that ChatGPT first said the case was in the correct Bluebook citation format (which was technically true) but then acknowledged that it screwed up and returned a case that was neither valid or real.

Soooooo aggravating!

Not wanting to drop the issue, I again asked ChatGPT:

if Baker v. Rushing, 104 S.E.2d 165 (N.C. 1958) is not a valid or real case, why did you return it in my initial query

To which ChatGPT responded:

That’s a very fair question — and you’re right to call this out.

Here’s what likely happened:

When you first asked about tailgating-related cases, I tried to retrieve examples of real case law, but I sometimes draw from patterns in legal writing rather than verified court databases. “Baker v. Rushing, 104 S.E.2d 165 (N.C. 1958)” looks like a perfectly plausible citation (correct reporter, correct jurisdiction, correct year), but after checking, there’s no record of such a case.

This is what’s known as a hallucination (or “holographic case”), where I construct something that looks real based on legal citation formats and similar case names — but it doesn’t actually exist.

The main reasons this happens are:

Predictive nature of my training: I was trained to generate text that follows patterns, including how case citations are written, but I don’t have perfect access to every case law database.

Similarity to real cases: There are real cases with names like Baker v. [Someone] and reporters like S.E.2d from 1958, so it can produce something that seems legitimate.

Overconfidence in early responses: Without doing a real-time case law search (like we just did for your follow-ups), I might give examples that aren’t verified.

This tends to happen more and more and as I use AI to help with blogging, I now ask whether particular cases returned are real before including them in my blog.

But this got me to thinking and I asked ChatGPT:

why does chatgpt return cases in a search that don't exist?

To which ChatGPT responded:

That’s a great question — and it’s one of the most important issues when using AI for legal research.

ChatGPT (and other LLMs) sometimes return cases that don’t exist because of the way large language models work:

Pattern Matching, Not Databases:
I don’t have a built-in legal case database. Instead, I was trained on lots of legal writing and I generate responses by predicting what looks like a plausible answer. If you ask for a case citation, I try to produce one that fits the pattern of a real case — correct reporter, volume, page — even if it’s made up.

Pressure to Be Helpful:
If you ask for “a case where X happened,” I try to fulfill that request. If I don’t have a known case in memory, I may invent one that sounds right rather than say “I don’t know,” especially if your prompt suggests that such a case must exist.

Legal Citations Are Predictable:
Because case citations follow a rigid format (e.g., Smith v. Jones, 123 F.3d 456 (9th Cir. 2020)), I can generate something that looks very convincing — even to experienced lawyers. But if you check the reporter, the case might not exist.

Contextual Merging (Hallucination):
Sometimes I blend real cases. For example, I might take facts from Case A and a holding from Case B and give it a citation that matches neither. This is not intentional — it’s a statistical artifact.

This problem is exactly what led to the high-profile Mata v. Avianca (S.D.N.Y. 2023) case — where lawyers used ChatGPT to write a brief, it cited six fake cases, and the court sanctioned them.

✅ Best Practice When Using AI for Legal Research:

Treat all AI-supplied case names and citations as leads, not authorities.

Verify every case in a trusted source (Westlaw, Lexis, Fastcase, Casetext, etc.) before using it.

If you can’t find it in an official reporter or database, assume it doesn’t exist.

And there you have it - even ChatGPT knows it lies to/misleads people. Well, maybe not out and out lie but returns results that are not accurate or existent.

For this reason,

always verify results,
always recheck results, and
never trust that the bot you're talking to is telling you the truth

...because what does an artificial intelligence know about "truth" when any/all information is true to an AI bot?

Word of the Month for September 2026: Identification

noreply@blogger.com (Mr. Librarian) — Mon, 07 Sep 2026 07:00:00 +0000

I've recently noticed something about myself.

I've noticed that when I walk up to people and start talking to them, the first question that comes out of my mouth is not always, "What is your name?"

Even if I don't know them, their name is not the most important part of the conversation. Which is odd because every time (I mean, EVERY time) in every video I've ever seen of a police/private person interaction, the name is the one thing that police need to hear.

That's "need" as in NEEEEEEEED IT, they do.

In fact, police need to hear a person's name right up front so bad that they'll perseverate on that one thing for hours until they get it. Can't relax until they hear it.

For our purposes here, IDENTIFICATION (or "ID") is defined as: the act of recognizing, establishing, or proving who a person is or what a thing is. In the context of a police/civilian interaction, it is the act of providing information that reasonably allows law enforcement to ascertain who a person is, typically including name, and sometimes additional details such as address, date of birth, or government-issued ID number.

The key points to keep in mind when examining IDENTIFICATION ("ID") is/are:

Purpose: To verify a person’s identity for investigative, safety, or legal reasons.
Forms of acceptable ID:
- Verbal: stating your full name (and sometimes other personal details).
- Documentary: showing an official ID (driver’s license, state ID, passport).
Legal Implication: Giving identification does not inherently imply wrongdoing; it simply establishes who you are.
Limitation: Except where authorized by law (state “stop and identify” statutes, traffic laws, or during arrest), you cannot be compelled to provide identification absent a lawful stop or reasonable suspicion.

So, why, exactly, do police ask for a person's ID? When officers are interacting with the public, they often want to quickly determine:

Who you are: this helps check records (warrants, criminal history, protective orders, etc.).
Whether you are wanted: outstanding warrants or alerts.
Whether there are safety concerns: warnings tied to your identity.
Whether the encounter escalates to an enforcement action: arrests, citations, or release.

Officers often ask for ID not because you’ve committed a crime, but because identity is foundational to investigative and safety decisions (at least, and here's where the paranoia kicks in, that's what they tell everyone).

Now, this is all well and good but, this being a legal-esque blog, what I'm wanting to know is where to police get off demanding a person's ID. I mean, do they have any legal authority to demand a person's ID or are they just winging it hoping no one will catch on and realize that they don't know what they think they know?!

Turns out, there are several legal doctrines in U.S. law that allow police to ask for a person's Identification. The principal reasons include are:

A. “Stop and Identify” Statutes

A minority of states have laws often called “stop and identify” statutes that require a person to identify themselves to police in specific circumstances; usually during a valid Terry stop.

Under Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court held that police can perform a brief investigative stop if they have reasonable suspicion that criminal activity may be occurring. They are also allowed to ask questions “reasonably related in scope” to the stop.

Then in 2004, the SCOTUS ruled in Hiibel v. Sixth Judicial Dist., 542 U.S. 177 (2004) that:

Where a state has a “stop and identify” statute, police can require a suspect to give name during a Terry stop.
The Court did not require documentary ID; just a reasonable explanation for refusal.
The authority comes from the state statute and the Court’s interpretation that it doesn’t violate the Fourth or Fifth Amendments in that context.

So, essentially, the rule from we get from Hiibel is that if a person is being detained during a lawful Terry stop, and if state law requires it, said person may be legally obligated to provide your name.

This, of course, raises another round of questions not the least of which is: can police demand ID without reasonable suspicion or probable cause?

Short answer - No. Police cannot legally force you to identify yourself absent a lawful stop or applicable law. Two key cases illustrate that:

In Brown v. Texas, 443 U.S. 47 (1979), the SCOTUS struck down a conviction based solely on refusal to identify, because the encounter (meaning that without reasonable suspicion or an applicable statute, police don't have authority to demand ID).

Further, in Delaware v. Prouse, 440 U.S. 648 (1979), the SCOUTS again held that police cannot stop a vehicle and demand ID (driver’s license) without any objective basis for the stop.

As a side note, and because so many of these YouTube videos talk about probable cause when it comes to whether police can stop a person and ask for their ID with/without it:

Probable cause is a higher standard. It is a reasonable belief, based on specific facts, that a person has committed a crime (needed for arrest or search warrants).
Reasonable suspicion is a lower standard and means having enough objective facts and evidence—not just a hunch—to lead a reasonable person to believe a crime has been committed (justifies brief stops).
Hiibel applies at the reasonable suspicion level.

So, Police can ask for ID during a lawful Terry stop (reasonable suspicion) where state law requires it but Officers cannot lawfully compel ID when there is no reasonable suspicion at all of a crime being committed.

Now, you may be asking, what states have stop and identify statutes?

Well, that's a really good question because not all states in the Union have such statutes. The ones that do include:

Alabama – Ala. Code § 15‑5‑30
Arizona – Ariz. Rev. Stat. § 13‑2412
Arkansas – Ark. Code § 5‑71‑213 (loitering context)
Colorado – Colo. Rev. Stat. § 16‑3‑103(1)
Delaware – Del. Code Ann. Tit. 11 §§ 1902, 1321(6)
Florida – Fla. Stat. § 901.151 & loitering statute § 856.021
Georgia – Ga. Code Ann. § 16‑11‑36(b) (loitering)
Illinois – 725 Ill. Comp. Stat. 5/107‑14
Indiana – Ind. Code § 34‑28‑5‑3.5
Kansas – Kan. Stat. Ann. § 22‑2402(1)
Louisiana – La. Code Crim. Proc. Ann. Art. 215.1(A)
Missouri – Mo. Rev. Stat. § 84.710(2) (Kansas City only)
Montana – Mont. Code Ann. § 46‑5‑401
Nebraska – Neb. Rev. Stat. § 29‑829
Nevada – Nev. Rev. Stat. § 171.123
New Hampshire – N.H. Rev. Stat. Ann. § 594:2
New Mexico – N.M. Stat. Ann. § 30‑22‑3
New York – N.Y. Crim. Proc. Law § 140.50(1)
North Dakota – N.D. Cent. Code § 29‑29‑21
Ohio – Ohio Rev. Code § 2921.29
Rhode Island – R.I. Gen. Laws § 12‑7‑1
Utah – Utah Code § 77‑7‑15
Vermont – Vt. Stat. Ann. Tit. 24, App. § 113(c)
Wisconsin – Wis. Stat. § 968.24

So, in these 24 states, the statute might say officers may require information; in others it says officers may demand it (at their discretion). Some states make refusal to provide ID a misdemeanor if the officer properly informs you of the law.

B. States that DON'T have stop-and-identify statutes.

The other 26 states which don't have stop‑and‑identify laws include:

California
Alaska
Connecticut
Hawaii
Idaho
Iowa
Kentucky
Maine
Maryland
Massachusetts
Michigan
Minnesota
Mississippi
New Jersey
North Carolina
Oklahoma
Oregon
Pennsylvania
South Carolina
South Dakota
Tennessee
Texas
Virginia
Washington
West Virginia
Wyoming

In these states, there is no statute that justifies police to compel identification during a Terry stop (meaning an officer usually cannot charge you with a crime simply for refusing to identify yourself unless you are driving or have been otherwise arrested).

Put plainly, in these 26 states, absent another legal basis for a stop (reasonable suspicion) or a specific context (traffic stop, arrest), you typically do not have a statutory obligation to provide your name or ID.

I guess a practical takeaway from all this is:

Police ask for your ID for investigative and safety purposes.
The authority to compel your identity hinges on:
- a lawful stop (reasonable suspicion),
- and applicable statute in your respective jurisdiction.

I guess, then, what you (the non-police person) needs to do is get smart on the laws in your state. If you live in a state that as a stop and identify statute (see above), then failing to so identify will probably result in your being charged with a misdemeanor.

If, however, if you live in a state that does NOT have stop and identify statute, keep your nose clean, don't piss anyone off, make sure there are no witnesses, and you should be in the clear.

Should be - but no guarantees.

Legal Myth Monday: 15 Of The Second Amendment’s Greatest Hits and Misses

noreply@blogger.com (Mr. Librarian) — Mon, 31 Aug 2026 07:00:00 +0000

You know what's funny?

It's how people use legal words and concepts like they think they know what legal things mean.

They don't - or, at least they don't mean what they think they mean.

You know what I mean?

Probably not - which is why I'm creating a new blog section - "Legal Myth Monday" to cover what things legal mean and how they're applied in real time.

In today's episode, we're dealing with all things Second Amendment which has spent a long time lurking in the constitutional shadows. Then came District of Columbia v. Heller, McDonald v. Chicago, New York State Rifle & Pistol Ass’n v. Bruen.

Suddenly, the right to keep and bear arms (and particularly the right to armed self-defense) was no longer something courts could simply treat as constitutional background scenery.

Heller recognized an individual right to possess a firearm for lawful purposes, with self-defense at its core. McDonald made that right applicable to the states. And Bruen changed the rules for evaluating restrictions. When the Second Amendment's text covers the conduct, the government must show that its regulation is consistent with the Nation's historical tradition of firearm regulation.

So let's pull back the curtain, turn on the constitutional flashlight, and expose 15 myths about what the Second Amendment actually protects.

Myth #1: The Second Amendment protects a collective right connected only to militia service.

Reality: The Second Amendment protects an individual right to keep and bear arms, including for lawful self-defense.

Explanation: The Supreme Court settled the individual-right question in Heller. The militia language announces a purpose; it does not transform the operative right into a collective privilege.

Related Authority: District of Columbia v. Heller, 554 U.S. 570 (2008).

What the Case Is About: District of Columbia law effectively prohibited handgun possession in the home and required lawful firearms to be kept inoperable.

Holding: The Court held that the Second Amendment protects an individual right to possess a firearm unconnected with militia service and to use it for traditionally lawful purposes, including self-defense in the home.

Cheeky Reality Check: The Second Amendment may mention a militia. That doesn't mean you need to show up at the armory with a membership card.

Myth #2: The Second Amendment applies only to the federal government.

Reality: The Second Amendment right applies to state and local governments through the Fourteenth Amendment.

Explanation: The Second Amendment was originally understood as a limitation on the federal government. Through the Fourteenth Amendment, however, certain rights protected by the Bill of Rights have been incorporated and made applicable to the states. As a result, the Second Amendment places constitutional limits not only on federal action, but also on state and local governments.

Related Authority: McDonald v. City of Chicago, 561 U.S. 742 (2010).

What the Case Is About: Chicago maintained extremely restrictive handgun laws after Heller was decided.

Holding: The Court held that the Second Amendment right recognized in Heller is fundamental and is incorporated against the states through the Fourteenth Amendment. Consequently, state and local governments are also bound by the Second Amendment and may not infringe that right in violation of the Constitution.

Cheeky Reality Check: After McDonald, a state cannot simply say, “Nice constitutional right you've got there. Unfortunately, we don't recognize it.”

Myth #3: The Second Amendment protects self-defense only inside the home.

Reality: The right to bear arms for self-defense extends into public spaces.

Explanation: The Supreme Court expressly rejected the notion that the Second Amendment's protection disappears when a law-abiding citizen walks out the front door.

Related Authority: New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022).

What the Case Is About: New York required applicants for unrestricted concealed-carry licenses to demonstrate “proper cause,” effectively requiring a special need for self-defense.

Holding: The Court held that the Second and Fourteenth Amendments protect an individual's right to carry a handgun publicly for self-defense. Therefore a state may not require a person to demonstrate a special need for self-defense before obtaining a license to carry a handgun in public.

Cheeky Reality Check: Apparently the constitutional right to self-defense doesn't expire when your front-door mat ends.

Myth #4: A citizen must prove some special or extraordinary need before exercising the right to carry for self-defense.

Reality: Ordinary, law-abiding citizens do not have to prove that they are unusually endangered before exercising the right.

Explanation: A licensing system that gives the government discretion to decide who has a “good enough” reason to protect himself is precisely the type of system Bruen rejected.

Related Authority: Wrenn v. District of Columbia, 864 F.3d 650 (D.C. Cir. 2017).

What the Case Is About: Washington, D.C., required applicants to demonstrate a “good reason” before receiving a concealed-carry license.

Holding: The D.C. Circuit held that the requirement effectively limited public carry to a privileged class of citizens who could demonstrate a special need, and therefore concluded that the District's licensing requirement violated the Second Amendment.

Cheeky Reality Check: “I'm worried about being attacked” is apparently enough to worry about an attack but not, according to D.C.'s old system, enough to prepare for one.

Myth #5: Any licensing requirement for carrying or possessing a firearm is unconstitutional.

Reality: Objective, nondiscretionary “shall-issue” licensing regimes can be constitutional.

Explanation: The Second Amendment does not mean that a person must be allowed to acquire or carry a firearm without any screening or licensing process. What matters is how the licensing system operates. A “shall-issue” system uses objective requirements—such as a background check or safety training—and requires the government to issue the license when those requirements are satisfied.

That is fundamentally different from a “may-issue” system in which officials can decide whether an applicant has a sufficiently good reason to exercise the right. Bruen treated objective, nondiscretionary licensing systems as presumptively constitutional, while rejecting systems that give officials the power to decide which ordinary citizens have a sufficiently compelling need for self-defense.

Related Authority: Maryland Shall Issue, Inc. v. Moore, 116 F.4th 211 (4th Cir. 2024) (en banc).

What the Case Is About: Maryland required prospective handgun purchasers to obtain a Handgun Qualification License after satisfying objective requirements.

Holding: The en banc Fourth Circuit upheld the licensing system, concluding that Bruen recognized the presumptive constitutionality of objective “shall-issue” licensing regimes, provided they do not operate abusively.

Cheeky Reality Check: The Constitution apparently doesn't object to paperwork. It objects when the paperwork becomes a constitutional obstacle course.

Myth #6: The government can make you wait indefinitely to obtain a firearm because the Second Amendment protects possession, not acquisition.

Reality: The right to keep and bear arms necessarily includes meaningful access to acquiring arms.

Explanation: A right to possess something becomes rather theoretical if the government can simply prevent you from acquiring it.

Related Authority: Ortega v. Grisham, 148 F.4th 1134 (10th Cir. 2025).

What the Case Is About: New Mexico imposed a seven-day waiting period on most firearm purchases.

Holding: The Tenth Circuit concluded that the plaintiffs were likely to succeed in showing that the waiting period violated the Second Amendment because the right to bear arms necessarily includes a right to acquire arms, and the government failed to identify a sufficient historical tradition supporting the waiting period.

Cheeky Reality Check: “Sure, you have the right to own a gun. We'll let you know when you can actually get one.”

Myth #7: The government can require firearm training while simultaneously making meaningful training practically impossible.

Reality: The Second Amendment protects conduct necessary to the meaningful exercise of the right, including firearm training.

Explanation: Training and proficiency are closely connected to the lawful use of a firearm for self-defense. A right to possess a firearm for self-defense would be of limited practical value if the government could simultaneously prevent people from learning how to use that firearm safely and effectively.

The Second Amendment protects the meaningful exercise of the right, not merely possession of an object that its owner has never been permitted to practice using. That does not mean every firearm-training facility, course, or practice session receives absolute constitutional protection; reasonable regulation of ranges and training may still be permissible. The important distinction is between regulating firearm training and effectively eliminating the ability to obtain it.

Related Authority: Ezell v. City of Chicago, 651 F.3d 684 (7th Cir. 2011).

What the Case Is About: Chicago required residents to complete firing-range training before obtaining a handgun permit while simultaneously prohibiting virtually all firing ranges in the city.

Holding: The Seventh Circuit held that the range ban severely burdened the Second Amendment right and granted preliminary relief.

Cheeky Reality Check: “Here's your constitutional right. Now here's your mandatory training. And here's a law saying you can't train.” That's not regulation. That's constitutional hide-and-seek.

Myth #8: The Second Amendment protects only firearms that existed when the Amendment was ratified.

Reality: The protection extends to modern bearable arms, not merely eighteenth-century weapons.

Explanation: The constitutional right did not come with an expiration date tied to the last musket manufactured in 1791.

Related Authority: Caetano v. Massachusetts, 577 U.S. 411 (2016) (per curiam).

What the Case Is About: A woman possessed a stun gun for self-defense. Massachusetts courts concluded that stun guns fell outside the Second Amendment because they were not in existence in 1791.

Holding: The Supreme Court rejected that reasoning, explaining that the Second Amendment protects arms that are commonly possessed for lawful purposes, not merely weapons that existed at the time of the Founding. The fact that modern technology has produced new types of firearms does not, by itself, remove those weapons from the Amendment's protection.

Cheeky Reality Check: If the Founders had intended to constitutionalize only muskets, somebody forgot to put “muskets only” in the fine print.

Myth #9: If a firearm is commonly used for lawful self-defense, the government can ban it simply because it considers the weapon unusually dangerous.

Reality: The government faces a serious constitutional problem when it bans arms that are commonly possessed for lawful purposes.

Explanation: Heller distinguished protected weapons in common use from “dangerous and unusual” weapons. That distinction remains central to modern Second Amendment litigation.

Related Authority: Barnett v. Raoul, Nos. 24-3060 et al., slip op. at 55–65 (7th Cir. July 9, 2026).

What the Case Is About: Illinois's Protect Illinois Communities Act restricted AR-15-style rifles and thirty-round magazines.

Holding: The Seventh Circuit ultimately upheld the restrictions under the Bruen/Rahimi historical-tradition framework, concluding that the challenged restrictions were consistent with the principles underlying the Nation's firearm-regulation tradition.

Cheeky Reality Check: Here's the important twist: “Commonly used” does not automatically mean “immune from regulation.” The Constitution may protect the arm, but the government can still have a historical argument to make. And sometimes, surprisingly, it wins.

Myth #10: Once Bruen was decided, virtually every firearm regulation became presumptively unconstitutional.

Reality: No. Bruen created a historical-tradition test not a constitutional demolition derby.

Explanation: The government may still regulate conduct covered by the Second Amendment if it can demonstrate that the regulation is consistent with the Nation's historical tradition.

Related Authority: United States v. Rahimi, 602 U.S. 680 (2024).

What the Case Is About: Rahimi possessed firearms while subject to a domestic-violence restraining order that included a finding that he posed a credible threat to another person's physical safety.

Holding: The Supreme Court held that an individual found by a court to pose a credible threat to another's physical safety may be temporarily disarmed consistent with the Second Amendment.

Cheeky Reality Check: Bruen did not say, “History shall be used only when the government loses.” History is the referee here, not the government's designated pinch hitter.

Myth #11: The Second Amendment gives you an unrestricted right to manufacture your own firearm including a 3-D-printed “ghost gun.”

Reality: The Second Amendment does not automatically exempt privately manufactured firearms from regulation.

Explanation: The right to keep and bear arms does not necessarily mean that every method of acquiring or manufacturing an arm is constitutionally immune from regulation. Bruen requires courts to examine whether a challenged restriction fits the Second Amendment's text and the Nation's historical tradition.

Thus, the fact that someone wants to make a firearm for personal self-defense does not, by itself, answer whether the government may regulate how that firearm is manufactured, serialized, or transferred. The constitutional question is whether the particular regulation impermissibly burdens the protected right—not simply whether the firearm was made by its owner.

Related Authority: Defense Distributed v. Attorney General of New Jersey, No. 23-3058, 2026 WL 465147 (3d Cir. Feb. 12, 2026).

What the Case Is About: Defense Distributed and the Second Amendment Foundation challenged New Jersey restrictions involving computer files used to manufacture 3-D-printed firearms. They argued, among other things, that the restrictions infringed a Second Amendment right to “self-manufacture firearms.” The district court dismissed the claim, and the plaintiffs appealed.

Holding: The Third Circuit affirmed dismissal. It held that the plaintiffs had not alleged an actual Second Amendment injury because they did not allege that they (or their members) had actually attempted to 3-D print a firearm and been prevented from doing so. The court therefore did not decide that the Second Amendment categorically protects or does not protect self-manufacture of firearms.

Cheeky Reality Check: The Second Amendment may protect your right to have an arm. But that doesn't necessarily mean the Constitution hands you a 3-D printer, a spool of polymer, and a constitutional permission slip.

Myth #12: Anyone who has ever used marijuana is automatically outside the Second Amendment.

Reality: Not necessarily. The government cannot automatically disarm a regular marijuana user solely on that basis without the historical justification the Second Amendment requires.

Explanation: The Second Amendment does not permit the government to disarm an entire category of otherwise law-abiding people simply by labeling that category dangerous. When a person's conduct falls within the Amendment's protection, the government must show that the restriction is consistent with the Nation's historical tradition of firearm regulation. That does not mean drug users have an unlimited right to possess firearms.

Restrictions involving addiction, current intoxication, or individualized evidence of dangerousness may raise different questions. The important point is that drug use alone does not automatically answer the Second Amendment question.

Related Authority: United States v. Hemani, 608 U.S. 2 (2026).

What the Case Is About: The government relied solely on Hemani's admitted marijuana use to prosecute him for possessing a firearm.

Holding: The Court affirmed dismissal of the prosecution, while expressly leaving open questions involving addicts, people presently intoxicated, individualized proof of dangerousness, and other firearm restrictions.

Cheeky Reality Check: The constitutional question is apparently more complicated than: “Pot? Gun? Prison.” Imagine that.

Myth #13: Being between ages 18 and 20 automatically gives you an unrestricted Second Amendment right to purchase any firearm.

Reality: The question is constitutionally contested, and at least one federal circuit currently upholds age-based purchase restrictions.

Explanation: The Second Amendment does not contain a specific age at which the right to keep and bear arms begins, so age restrictions have to be evaluated under the constitutional framework established by Bruen.

That means the government cannot simply declare that people under 21 are too young to exercise Second Amendment rights; it must demonstrate that the restriction is consistent with the Nation's historical tradition of firearm regulation.

Related Authority: Nat'l Rifle Ass'n of Am. v. Bondi, 133 F.4th 1108 (11th Cir. 2025) (en banc), cert. denied, 2026 WL 1871313 (U.S. June 30, 2026).

What the Case Is About: Florida prohibited persons under 21 from purchasing firearms.

Holding: The en banc Eleventh Circuit upheld Florida's 21-year purchase age. The court concluded that, historically, people under 21 were treated as minors who lacked the legal capacity to independently acquire property, including firearms.

NRA v. Bondi noted that although 18-to-20-year-olds are adults for many purposes today, the Eleventh Circuit concluded that their constitutional rights concerning firearm purchases could still be treated differently from those of older adults because of the historical treatment of young adults and minors.

Florida's law was therefore sufficiently analogous to that historical tradition under the Second Amendment's text-and-history framework. The Supreme Court denied review on June 30, 2026, leaving the Eleventh Circuit's judgment in place.

Cheeky Reality Check: The Second Amendment may say “the people,” but courts are still arguing about exactly where adolescence ends and constitutional adulthood begins.

Myth #14: Once a government labels a location a “sensitive place,” the Second Amendment automatically disappears there.

Reality: Sensitive-place restrictions can be constitutional but the government still has to stay within the historical tradition recognized by Bruen and Rahimi.

Explanation: The Supreme Court has identified places such as schools and government buildings as traditional examples of sensitive places. But that doesn't mean a legislature can simply slap a “sensitive” sticker on half the state and declare the Second Amendment closed for business.

Related Authority: Kipke v. Moore, 165 F.4th 194 (4th Cir. 2026).

What the Case Is About: Maryland's SB 1 (the Gun Safety Act of 2023) designated numerous locations as places where firearms could not be carried, including private property open to the public and various public locations.

Holding: The Fourth Circuit examined the challenged restrictions under Bruen and concluded that some restrictions could be historically justified while rejecting Maryland's broad presumptive prohibition on carrying firearms on private property open to the public without the owner's permission. The court's mandate was subsequently stayed while the parties sought Supreme Court review.

Cheeky Reality Check: Calling someplace “sensitive” is a legal argument. It isn't a magic word.

Myth #15: The government can regulate firearm acquisition, sales, and transfers however it wants because the Second Amendment protects only possession and carrying.

Reality: Regulations governing acquisition can implicate the Second Amendment when they meaningfully constrain the ability to possess and bear arms.

Explanation: Courts have distinguished between ordinary commercial regulations and regulations that effectively prevent ordinary citizens from acquiring firearms.

Related Authority: Nguyen v. Bonta, 140 F.4th 1237 (9th Cir. 2025).

What the Case Is About: California prohibited most people from purchasing more than one firearm within a 30-day period.

Holding: The Ninth Circuit held that California's one-gun-a-month law facially violated the Second Amendment because the right to keep arms includes the ability to acquire firearms and the restriction was not supported by the Nation's historical tradition.

Cheeky Reality Check: The government can't necessarily say, “Sure, you have the right to own one. We're just going to make buying another one practically impossible.” At some point, “regulation” starts looking suspiciously like “denial.”

After Heller, McDonald, and Bruen, the Second Amendment is no longer the constitutional wallflower. The Supreme Court has made clear that the right to keep and bear arms is an individual right, that self-defense sits at its core, and that the right extends beyond the front door.

Government may regulate firearms but it cannot simply declare a regulation reasonable and call it a day. Under Bruen, history gets a seat at the table.

Of course, the Second Amendment isn't a constitutional “Do Whatever You Want With a Gun” card. Rahimi makes that clear.

The real question isn't whether a firearm regulation sounds sensible. Rather, it's whether the regulation is consistent with the text, history, and tradition that define the right. In other words: when it comes to the Second Amendment, the Constitution has receipts and the government better bring some of its own.

An Ounce of Prevention

noreply@blogger.com (Mr. Librarian) — Mon, 17 Aug 2026 07:00:00 +0000

Have you ever had those moments when you thought to yourself - dang, what I should have said was.... Or maybe you did something and later wished you hadn't.

Maybe like when your boss said something condescending to you and at the time the only thing you thought to say was, "That's a good one, boss" then later you thought, what I should have said was "I came here to do good work—not absorb bad management!"

Or maybe when you asked your wife if she minds that you go golfing with your buddies and she says that's "fine" - so you go and when you get back she's pissed off seven ways from Sunday but you don't know why.

Stuff like that.

This got me to thinking the other day when a friend of mine related an interaction he had with a local "Karen" in his neighborhood. Seems said "Karen" had been riding his backside for the last few months because his Christmas light were still up.

Thing is, there are any number of reasons "Karen's" go off on people but it got me thinking of ways to avoid confrontational neighborhood "Karens." So, I create a list of ways to keep your neighborhood Susan's or Jennifer's or Laurie's from turning into a Karen.

1. Make your property “boringly compliant”

Most neighbor conflicts come down to things that look like violations—even if they aren’t. “Make your property ‘boringly compliant’” means keeping everything so clearly within local rules and neighborhood norms that there’s nothing for anyone to latch onto or argue about. For instance:

Keep lawns, weeds, trash bins, and parking tidy
Check your city’s basic ordinances (noise hours, fence height, parking rules)
If something looks borderline, assume someone will notice

This isn’t about surrender—it’s about removing easy ammunition.

Related Authority:

Village of Belle Terre v. Boraas, 416 U.S. 1 (1974) reinforced the authority of municipalities to establish and enforce land-use regulations. NOTE: the standards come from the ordinance, not the loudest neighbor.

2. Control the first impression

People are far less likely to escalate if they see you as human. “Control the first impression” means making sure neighbors see you as a normal, reasonable, low-drama person early on—because people tend to interpret everything you do later through that initial lens. This can be accomplished by:

A simple wave or quick introduction early on goes a long way
You don’t need to be friends—just recognizable and polite
Avoid coming off defensive or standoffish right out of the gate

It’s harder to complain about “that guy” if you’ve already humanized yourself.

Related Authority:

Prah v. Maretti, 108 Wis. 2d 223, 321 N.W.2d 182 (1982) recognized that neighboring landowners owe one another duties of reasonable use and that disputes between neighbors should be evaluated in light of what is reasonable under the circumstances.

3. Don’t feed the escalation loop

“Don’t feed the escalation loop” means resisting the urge to match someone’s intensity when they come at you with complaints, attitude, or accusations. The more emotion, defensiveness, or sarcasm you add, the more the interaction tends to spiral. If someone nitpicks or complains:

Stay calm, brief, and neutral
Don’t argue on the sidewalk—it turns into theater
If they’re wrong, you don’t need to prove it immediately

Escalation is oxygen. Starve it.

Related Authority:

In Rattigan v. Wile, 445 Mass. 850, 841 N.E.2d 680 (2006), a disagreement between neighbors escalated into a deliberate campaign of retaliation that ultimately resulted in liability for private nuisance. The legal lesson is simple: once a dispute becomes about "getting even" instead of solving the problem, every retaliatory act increases the likelihood that a judge (not just the neighbors) will become involved.

4. Use quiet documentation

Keep a calm, private record of what’s happening instead of reacting in the moment or getting pulled into arguments. The point isn’t to build a case theatrically; it’s to create clarity and protection for yourself if things escalate. If someone is persistently difficult:

Keep records (dates, what happened, photos if relevant)
Save texts or written communication
Know your HOA or city complaint process before you need it

This flips the power dynamic without confrontation.

Related Authority:

Courts recognize that memories fade, stories change, and disputes become harder to resolve as time passes. Contemporaneous records—such as photographs, messages, logs, and written observations—can be powerful evidence because they capture events closer to the time they occurred. See United States v. Orr, 68 F.3d 1247, 1251–52 (10th Cir. 1995).

5. Choose your battles (strategically)

Recognize that not every annoyance, comment, or minor rule-bending is worth your time, energy, or reputation to confront. The strategic part is deciding what actually has long-term impact: safety issues, repeated harassment, property damage, or whether formal violations are worth addressing. So:

Minor annoyance → let it go
Pattern of harassment or false complaints → address formally
Safety or legal issues → act immediately

Winning every small fight can lose you the bigger war. What this means is that a person who complains about everything risks looking unreasonable, but a person who ignores a pattern of escalating conduct may lose the ability to prove the seriousness of the problem later. The strategic choice is not "never complain"; it is reserve formal action for things that have legal or practical consequences.

Related Authority:

The law recognizes that neighbors will inevitably annoy each other from time to time. Courts generally distinguish between ordinary inconveniences and conduct that creates a substantial interference with property rights. See Armstrong v. Francis Corp., 20 N.J. 320, 120 A.2d 4 (1956).

6. Set calm boundaries

Clearly define what behavior you will and won’t engage with, but you do it without anger, lectures, or emotional escalation. In practice, this looks like short, repeatable statements. You stay consistent—calmly reinforcing the same limit if needed. If someone crosses a line:

“I’m happy to follow city rules, but I’m not going to engage beyond that.”
Repeat as needed, without adding emotion

Consistency beats clever comebacks.

Related Authority:

In Rowan v. United States Post Office Department, 397 U.S. 728 (1970), the Supreme Court upheld a homeowner's right to stop unwanted communications from entering the home. The practical lesson is simple: state the boundary clearly, avoid unnecessary debate, and do not turn every disagreement into a confrontation.

7. Build a buffer (social proof)

Quietly create a network of normal, neutral, or positive neighbor relationships so you’re not isolated or easy to target if conflict ever pops up. This is important because neighborhood disputes often aren’t just about facts; they’re about perception and who seems credible. If you have even one or two neutral-to-positive neighbors:

Casual friendliness creates a “baseline reputation”
People are less likely to side against someone who seems reasonable

It’s subtle, but powerful.

Related Authority:

Credibility, reputation, and perception matter when evaluating disputed claims. In Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485 (1984), the SCOTUS discussed the importance of reputation and the difficulty of determining truth when competing accounts exist.

8. Worst-case: disengage + formal channels

Recognize when direct, informal interaction has stopped being productive and switching to a more structured, low-contact approach is a better approach. If someone is truly relentless:

Stop direct interaction
Communicate only in writing if necessary
Use HOA, mediation, or local code enforcement appropriately

At that point, it’s not about winning socially—it’s about protecting your time and sanity.

Related Authority:

Courts recognize that when disputes become persistent and informal efforts fail, the solution is often a structured remedy - not more arguing. See Boomer v. Atlantic Cement Co., 26 N.Y.2d 219, 309 N.Y.S.2d 312, 257 N.E.2d 870 (1970). Also, in Rondeau v. Mosinee Paper Corp., 422 U.S. 49 (1975) the SCOTUS discussed the availability of equitable relief when legal rights require structured judicial intervention.

The thing is, most people want to be reasonable. Rare is the case that people flip out over kids playing in the street, or neighbors having a block party, or someone installing a pool in their backyard.

While most people want to be reasonable, some don't. In such cases, keep a record, take notes, make friends where you can and, maybe, just maybe, buy one of those REALLY loud 1,000 watt speakers to blast Mozart's Queen of the Night aria at at all hours of the day/night and engage in some serious psychological warfare.

I mean, if Karen wants crazy, I suggest going lunatic crazy.

Go all out.

Make a scene.

Give as good as you get.

It may be counterintuitive, but sometimes crazy is good for the soul.

Disposable Income

noreply@blogger.com (Mr. Librarian) — Mon, 10 Aug 2026 07:00:00 +0000

Do you have more money than you know what to do with? I know a few people like that. I knew a guy who bought and traded twin-engine planes like most kids trade baseball cards.

The thing is that people will buy what they want to buy not necessarily what they need to buy.

Recently, I became a card-carrying member of Costco. Consequently, each week I get an email message from my friendly neighborhood Costco telling me about all the lovely thing I could buy - not things I value or want but someone apparently does.

This week, I got a notice about one such item that caught my attention called La Prairie Skill Caviar Liquid Lift. Sounds French - which, to be fair, isn't a bad thing - it's just a thing....an expensive thing.

Anyway, most times when I get these emails, it says how much the thing costs. What caught my attention was that there was no price attached to La Prairie Skill Caviar Liquid Lift which piqued my interest and got me to doing some investigating.

According to the official La Prairie website:

The new Skin Caviar Liquid Lift is augmented with Caviar Micro-Nutrients to help support skin's metabolism for augmented lifting efficacy. Day after day, wrinkles and lines appear faded, skin is firmed and youthful contours are revealed.

Sounds like fancy make-up. Turns out, La Prairie Skill Caviar Liquid Lift costs an astounding $785 (USD) for a 50 ml/1.7 oz bottle.

For $785, I'd want someone to come apply the stuff personally! That's the thing, though. While I can't see spending that much cash for something I can't even eat, other people clearly will and do.

The reason I'm bringing this all up is because I was talking to someone I met on the street. Person was standing next to his spanking brand new Chevrolet Stingray Corvette 3LT Convertible.

It was beautiful.

In the course of our conversation, Person noted that they were looking to provide for their family in case of their demise and was wondering to me whether they should get a will or a living trust.

According to Google, a living will outlines your medical preferences if you become incapacitated - essentially a durable power of attorney. It addresses end-of-life medical care, such as the use of life support, pain management, and organ donation

A living trust, on the other hand, manages and distributes your assets during your lifetime and after your death allowing you to bypass probate (a costly legal process of distributing assets after death) and ensures your assets are distributed according to your instructions.

Believe it or don't, there are a whole lot of people in legal land who will say they can help you at low cost. Popular legal website Rocket Lawyer says they'll help you create a trust. Popular publisher Nolo Press has resources that can help you create a generic trust. However (and I say this from experience working for an estate planning attorney), nothing beats the confidence knowing that you had a lawyer create your trust/will.

I can't count the number of people we had to bail out in probate court either because their deceased didn't leave a will or the documents they did have were defective and were tossed by the probate judge. Sometimes there was a trust but, for whatever reason, the trust was never properly funded and their heirs wound up in probate.

Anyway, I suggested Person take a look at Martindale.com to help locate a reputable estate planning attorney. Aaaaaand that's about where the conversation fell apart.

Seems Person was really into his money and wasn't really interested in spending money FOR a trust or a will. Person was just looking for a way to protect his cash for his loved ones without spending any money or the least amount of money possible.

Yeah, it didn't make sense to me but who am I to argue with someone who was wearing a down payment on a house and driving an $185,000 vehicle?

Thing is, we all decide what we value and what we're willing to spend our money on. Person liked expensive things but clearly didn't value legal assistance as much as he (or his heirs) probably should (or will).

Word of the Month for August 2026: Constructive Termination (aka Constructive Discharge)

noreply@blogger.com (Mr. Librarian) — Mon, 03 Aug 2026 06:30:00 +0000

It's August and you know what that mean, right?!

Well, for some people it's a time for new beginnings and in the case of others - a new job.

Thing is, any 1st day of any month is a day of new beginnings.

Today's new beginning was one youngish lady with toddler in tow who I met at the city public library the other day.

You know the problem with most public city libraries is that they are generally devoid of anything legal related. Lots of romance novels, young adult mysteries, graphic novels about Batman and the Justice League but try to find anything legal related and you get bupkis.

Anyway, Lady tells me that she recently left her place of employment because her employer was making life at said place of employment too difficult to continue working there and she was now looking for something (at the city public library that has NOTHING legal related in its entire collection) to help her seek retribution against her now former employer.

What, I suspect, Lady was looking for was something related to constructive termination/discharge.

CONSTRUCTIVE TERMINATION occurs when an employee resigns due to intolerable working conditions that were so severe or pervasive that a reasonable person in their position would feel compelled to quit. It is treated legally as if the employer terminated the employee, even though the resignation was voluntary in form.

So, imagine you love playing at a playground. But the grown-up who runs the playground starts doing mean things every day:

They take away your toys on purpose.
They yell at you for no reason.
They make you play all alone while other kids get to play together.
You ask for help, but no one listens.

Now you feel so sad and hurt that you decide, “I don’t want to come to this playground anymore!”

Even though you chose to leave, it was really because the grown-up made it so bad that you had no other choice.

That’s what constructive termination means at work:

“I quit…but it’s because you made my job soooo awful, I had to leave.”

From a more grown-up perspective, in Pennsylvania State Police v. Suders, 542 U.S. 129 (2004), the plaintiff, Nancy Drew Suders, quit her job as a dispatcher for the Pennsylvania State Police in August 1998. She claimed that she had been sexually harassed by her supervisor.

In an 8-1 decision, the SCOTUS ruled that an employee faced with a situation in which a "reasonable person ... would have felt compelled to resign" could bring suit even if she had not filed a report with the employer before resigning.

After Suders, in cases of constructive termination, the "reasonable person" standard asks:

Would a hypothetical, reasonable employee — in the same circumstances — have felt that quitting was the only viable option?

It does not ask whether the actual plaintiff personally felt forced to quit. Instead, courts look at:

What an average person with the same job, status, and in the same workplace would do,
Under similar pressures or abusive conditions,
With ordinary emotional resilience, not hypersensitivity.

To prove a constructive dismissal, an employee must be able to show:

There’s been a serious breach of their contract of employment, and
They’ve resigned in response to that breach and not for some other reason.

As to the first limb of this twofold test, the employee must be able to show a fundamental breach of their employment contract. This could be a breach of either an express contractual term or breach of the implied term of mutual trust and confidence but, in either case, this must be sufficiently serious so as to justify termination of their contract.

As to the second limb of the test, the employee must show that the actions of the employer resulted in their resignation. This often means that the employee’s decision to resign must quickly follow the conduct complained of, unless they’ve made it clear that they’re working under protest.

If there is a marked time gap between the conduct complained of and the employee either lodging a formal grievance or handing in their resignation, an adverse inference can potentially be drawn here from any delay.

The thing is that not all situations qualify as constructive termination and in some instances, courts have considered facts on a case-by-case basis. It is important to know what's what before acting. Some situations which MIGHT qualify as constructive termination where:

1. Demotion Without Cause

An employee is suddenly demoted without explanation or justification. If accompanied by humiliation, pay cuts, or loss of duties, this may cross the line into constructive discharge.

2. Unwarranted Reassignments

A manager repeatedly transfers an employee to undesirable shifts or far-away locations to “encourage” resignation. Example: Moving a single mother from a daytime role to an overnight one without justification.

3. Unrealistic or Punitive Workload

A high-performing employee is suddenly assigned an impossible workload with the goal of setting them up to fail. If this is targeted retaliation (e.g., after reporting harassment), it could support a claim.

4. Exclusion and Isolation

An employee is systematically excluded from meetings, communications, or work-related decisions. If this is retaliatory or based on discrimination, it may be grounds for constructive discharge.

5. Microaggressions or Patterned Disrespect

Persistent subtle discrimination (e.g., sexist jokes, mocking religious beliefs) that creates a hostile work environment. Even if no single act is severe, the cumulative effect can rise to an intolerable level.

6. Ignoring Workplace Harassment

An employer fails to act after multiple reports of harassment (verbal, physical, or online), leaving the employee feeling unsafe or unsupported. Courts often consider employer inaction or retaliation as critical in these cases.

7. Forced “Resignation” Under Pressure

A supervisor tells an employee: “Resign or be fired.” Even if the employee chooses to resign, courts may find this is constructive termination due to coercion.

In case you were wondering, there are a number of REAL cases involving constructive termination, such as:

1. Green v. Brennan, 578 U.S. 547 (2016)

Holding: In a federal employment constructive discharge claim, the limitations period begins when the employee resigns, not when the last discriminatory act occurs.

Key Takeaway: This case clarified the timing for filing a claim — constructive discharge claims accrue on the date of resignation, not earlier.

2. Turner v. Anheuser-Busch, Inc., 7 Cal. 4th 1238, 876 P.2d 1022 (1994)

Court: Supreme Court of California

Facts: Employee resigned alleging intolerable working conditions, including employer inaction over workplace misconduct.
Holding: The court ruled that constructive termination exists when the employer knowingly permits conditions so intolerable that a reasonable person would be forced to resign. The court set the standard for California constructive discharge claims.

Key takeaway: This is the leading California case that explains when resignation counts as wrongful termination.

3. MacKenzie v. Miller Brewing Co., 241 F.3d 870 (7th Cir. 2001)

Court: U.S. Court of Appeals, 7th Circuit

Facts: Plaintiff alleged gender discrimination and a hostile work environment, leading her to resign.
Holding: The court ruled against her, emphasizing that conditions must be objectively intolerable, not just unpleasant or stressful.

Key takeaway: Demonstrates that courts require more than subjective dissatisfaction; conditions must meet an objective threshold of severity.

4. Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000)

Court: U.S. Court of Appeals, 9th Circuit

Facts: A city employee claimed constructive termination after a co-worker groped her and management failed to act.
Holding: The court found the single incident, though serious, did not create such intolerable conditions as to support constructive discharge.

Key takeaway: Failure to act can sometimes support a claim, but courts still require the conditions to be pervasive or ongoing.

5. Fischer v. AT&T Mobility, LLC, 742 F.3d 377 (9th Cir. 2014)

Court: U.S. Court of Appeals, 9th Circuit

Facts: Employee alleged retaliation, demotion, and emotional stress that forced resignation.
Holding: The court held that while the workplace was unpleasant, it did not meet the threshold for constructive discharge.

Key takeaway: Not every demotion, reassignment, or unpleasant condition rises to the level of constructive termination.

Bottom line, constructive termination cases can be tricky. Just because you feel that you were treated unfairly doesn't mean that said treatment raises to the "reasonable person" standard. Best to document everything and consult with an attorney before doing anything.

Fauci, the Fifth, and the Pardon: Can He Have His Cake and Eat It Too?

noreply@blogger.com (Mr. Librarian) — Wed, 29 Jul 2026 21:09:00 +0000

As many of you in Blog-land may recall, at the end of President Biden’s term, Dr. Anthony Fauci received a pardon for any federal crimes he may have committed during the covered period (2020-2025).

After a diary attributed to Fauci reportedly came to light, questions arose about whether it showed evidence of wrongdoing or whether he may have provided inaccurate testimony to Congress.

When Fauci later appeared before Congress and invoked the Fifth Amendment, several legal questions emerged: What protections does the Fifth Amendment provide, does a pardon eliminate the right to remain silent, and can someone still be accused of lying to Congress if they have already received a pardon?

This is actually an interesting constitutional problem (if you're into these sorts of things) because it sits at the intersection of executive pardons, the Fifth Amendment privilege against self-incrimination, congressional oversight, and perjury statutes.

There are also some factual premises in our hypothetical that need to be separated from the legal analysis: whether a particular diary exists, what it says, whether it proves a crime, and whether a pardon covered particular conduct are factual questions. The legal principles, however, are fairly well established.

Let's walk through it.

1. What is the Fifth Amendment, and what was it designed to protect?

As it relates to the issue at hand, the relevant language of the 5th Amendment is:

“No person … shall be compelled in any criminal case to be a witness against himself…”

This is the "self-Incrimination clause" of the Fifth Amendment. The historical purpose was to prevent the government from using coercive interrogation practices to force people to convict themselves.

The Framers were reacting in part to practices in England where religious and political suspects could be compelled to answer accusatory questions under oath, even when those answers would lead to punishment.

The basic idea here is that the government has the burden of proving guilt. It cannot force the accused to help build the case against himself. The Supreme Court has repeatedly emphasized that the privilege protects human dignity, autonomy, and the accusatorial nature of our criminal justice system.

I'd like to point your attention to a few major cases as they relate to this issue:

Miranda v. Arizona, 384, U.S. 436 (1966)

This is the famous "you have the right to remain silent" case. The SCOTUS held that custodial interrogation requires warnings because people must be aware of their Fifth Amendment rights.

The important point here is that Miranda is only one application of the Fifth Amendment. The underlying privilege is much broader.

Griffin v. California, 380 U.S. 609 (1965)

The SCOTUS held that prosecutors cannot tell a jury: "The defendant didn't testify, so that proves guilt."

Consequently, the government cannot penalize someone for exercising the privilege.

Kastigar v. United States, 406 U.S. 441 (1972)

This is probably the most relevant case to our 2nd question.

In Kastigar, the SCOTUS held that a person may be forced to testify if they receive immunity that is at least as broad as the Fifth Amendment protection.

In other words:

The Fifth Amendment protects against being forced to incriminate yourself.
If the government removes the possibility of prosecution, the reason for the privilege disappears.
Therefore, immunity can replace the privilege.

That becomes important with pardons.

The case law about immunity is important because a pardon functions in a similar way to immunity when analyzing the Fifth Amendment.

Let's unpack that.

The Fifth Amendment says: A person cannot be forced to testify if the testimony could be used to incriminate them.

The key word here is "could." The person does not have to prove they will be prosecuted. They only have to show a reasonable possibility that their answers could expose them to criminal liability.

For example, if Congress asks "Did you knowingly falsify documents?"

...and the witness responds, "If I answer yes, the government could prosecute me for that."

...then the Fifth Amendment applies.

But now let's change the facts. The president grants that person a valid pardon covering that exact conduct. Now the witness says, "If I answer yes, the government could prosecute me."

The government responds, "No, it cannot. You have already been pardoned."

That is where Kastigar v. United States becomes important.

The principle from Kastigar is that the Fifth Amendment exists because testimony can lead to criminal punishment. If the government removes the possibility of criminal punishment through immunity, the person can be compelled to testify. As such, a pardon can serve a similar function because it removes criminal exposure for the pardoned conduct.

So the logical chain is:

Fifth Amendment protects against self-incrimination;
Self-incrimination requires possible criminal consequences;
Pardon removes criminal consequences;
Fifth Amendment privilege may disappear.

2. If someone receives a pardon, can they still invoke the Fifth Amendment?

This is where it gets interesting and the short answer is usually, no. A valid pardon generally removes the Fifth Amendment privilege for the crimes covered by the pardon.

Why?

Because the Fifth Amendment protects against being forced to provide evidence that could later be used to prosecute you.

But if you cannot legally be prosecuted for that conduct, there is no criminal exposure.

The Supreme Court addressed this in Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52 (1964).

The SCOTUS explained the rationale behind the privilege: it exists because compelled testimony could expose a person to criminal liability. Remove the possibility of prosecution and the privilege generally disappears.

A pardon operates similarly to immunity.

A classic example of this can be found in Burdick v. United States, 236 U.S. 79 (1915).

This case involved a newspaper editor who refused to accept a pardon. The SCOTUS recognized something important: A pardon is not simply a gift; it carries an implication that "you are forgiven because there was something to forgive."

That is why a pardon can have consequences beyond just wiping away punishment.

But here is the catch: A pardon only protects against the crimes covered by the pardon. It does not create a magical shield against every possible question.

For example, President Biden pardons Fauci for "Any federal offenses committed from 2020 through 2024 relating to COVID-19 policy."

That might eliminate prosecution for those crimes. But if Congress asks "did you lie under oath during this hearing last month?"

That is a different question. A pardon cannot cover a future crime that has not happened.

The problem that exists is that if you look at the wording of many of Biden's pardons, they almost all refer to all or any related crimes suggesting that people are pardoned for things that did happen or may yet happen. So, how does this jive with our statement that: A pardon cannot cover a future crime that has not happened.

The short answer is that a president can issue a pardon that covers past conduct that has not yet been discovered, charged, or prosecuted, but a president cannot pardon a person for conduct that has not yet occurred.

The key difference is unknown past crimes versus future crimes.

When a pardon says something like "all offenses against the United States which the person may have committed or taken part in during a certain period," it does not mean anything this person might do in the future. It means if this person committed a federal crime during the specified past period, whether we know about it today or not, that crime is forgiven.

The classic example is Richard Nixon. When Gerald Ford pardoned Nixon, the pardon covered:

"all offenses against the United States which he, Richard Nixon, has committed or may have committed..."

The purpose was to prevent a situation where prosecutors later discovered additional Watergate-related crimes and argued that those were not covered because they were not known at the time.

The Supreme Court has recognized that a pardon can cover offenses that are unknown at the time of issuance. In Ex parte Garland, 71 U.S. 333 (1866), the SCOTUS described the pardon power as extending to offenses already committed, whether known or unknown.

But there is a constitutional limit. A president cannot say "I pardon John Smith for any crimes he commits in the next ten years."

Why?

Because there is no "offense" yet. A pardon forgives an act; it does not create advance immunity for future criminal behavior.

Think of it like this:

Valid: "I pardon you for any federal crimes you committed between January 1, 2020 and January 1, 2025, whether known or unknown."

Not valid: "I pardon you for any federal crimes you commit from January 1, 2026 onward."

The reason many modern pardons sound extremely broad is because lawyers drafting them are trying to capture the first category: unknown acts that already happened.

Where it gets complicated, and where our question about Fauci fits, is that a broad pardon can create a practical problem.

Suppose a pardon covers "any federal offenses relating to COVID-19 policies, research, or responses between 2020 and 2025."

That might protect someone from prosecution for undiscovered crimes in that category.

But then the next question becomes does that same pardon protect against a separate crime, such as lying under oath to Congress, if that lie occurred during the same period?

That depends on the language of the pardon and how courts interpret whether the false statement itself is one of the "offenses" covered.

3. Does a pardon eliminate the Fifth Amendment privilege entirely?

Short answer: No, and this is the subtle part.

A pardon removes Fifth Amendment protection only where the pardon eliminates criminal exposure.

Suppose Fauci was pardoned for:

fraud related to COVID research
false statements from 2020–2024
conspiracy related to pandemic response

But Congress asks: "Did you commit tax fraud in 2025?"

The pardon does nothing. He could still invoke the Fifth.

The analysis is always could this answer expose me to criminal prosecution?

If yes → Fifth Amendment may apply.

If no → Fifth Amendment generally unavailable.

4. Can Fauci still be accused of lying to Congress after receiving a pardon?

Another short answer: Yes.

A pardon does not erase history and this is a common misunderstanding.

A pardon does not mean "The person did nothing wrong." Rather, it means the government will not prosecute this person for covered offenses.

The SCOTUS made that clear in United States v. Wilson, 32 U.S. 150 (1833) when Chief Justice Marshall described a pardon as an act of forgiveness, not a declaration of innocence.

So if Congress determines "You lied under oath," the pardon does not stop Congress from saying that. Rather, the pardon mainly prevents criminal punishment for the pardoned offense.

5. But can Fauci be prosecuted for lying to Congress if the underlying conduct was pardoned?

This is where the distinction gets important.

There are two separate crimes here.

Crime #1: The underlying conduct. Example: "You hid information about a government program."

Crime #2: The false testimony. Example: "You lied under oath when Congress asked about it."

Those are separate offenses. A pardon for Crime #1 does not automatically pardon Crime #2 unless the pardon language covers it.

The SCOTUS has long recognized that a pardon must be interpreted according to its language.

A person cannot generally say "I was pardoned for stealing money, therefore I cannot be prosecuted for lying about stealing the money"...unless the pardon covers both.

6. So does Fauci get to "have his cake and eat it too"?

The answer depends entirely on what the pardon actually covered.

The scenario describe above raises a legitimate constitutional tension:

A pardon removes criminal exposure.
Removing criminal exposure usually removes Fifth Amendment protection.
Therefore, a person who has been fully pardoned generally cannot refuse to answer questions about the pardoned conduct.

Congress could potentially argue that a person cannot invoke the Fifth because they have already been protected from prosecution. If Fauci refused anyway, Congress could consider contempt proceedings.

However, there is another wrinkle.

A witness does not get to simply say I was pardoned, therefore I must answer. The witness can still invoke the Fifth if answering could expose him to another crime not covered by the pardon.

Courts often resolve this through a process called a "Kastigar hearing," where the government must show that the testimony cannot be used against the witness.

In a Kastigar hearing:

Government Proof: Prosecutors present evidence, case files, dates, and witness testimony showing how they found their proof before the defendant spoke, or through separate investigative work.
Tracing Evidence: The government traces the timeline of its investigation to demonstrate zero contamination or "taint" from the immunized statements.
Defense Challenge: The defense attorney cross-examines government agents and argues that certain evidence wouldn't exist without the protected statements.
Judge's Decision: The judge decides if the prosecution met its high burden. If the state fails, the tainted evidence is thrown out, or the whole case may be dismissed.

So, the "upshot" of a Kastigar hearing is essentially: The government does not get to give you immunity with one hand and then use your compelled words against you with the other. If it wants your testimony, it must give you protection equivalent to the Fifth Amendment.

I guess the moral to this story is that the Fifth Amendment protects people from being forced to incriminate themselves, but a pardon may remove that danger by eliminating the possibility of prosecution for the pardoned conduct.

The REAL question is whether Fauci's pardon was broad enough to cover everything Congress is asking about; if it was, refusing to answer in a Congressional hearing becomes much, much harder to justify.

It's a National Sport in Some States

noreply@blogger.com (Mr. Librarian) — Mon, 27 Jul 2026 07:00:00 +0000

I've lived on the west coast, the east coast, up north, and down south in the great country that is America.

The one thing that I've found in most any state is that many (no, make that most) people who drive love to tailgate. Heck in Utah, it's a national sport.

For reference sake, Tailgating = driving too close behind another vehicle without maintaining a safe stopping distance. Most statutes define it as failing to leave sufficient space “so as to be able to stop safely without colliding.”

When I took driver training in high school many moons ago, "safe stopping distance" meant 2 car lengths or 2 seconds behind the car in front of you (whichever is greater). Note, that's car lengths like about how long a typical sedan is - not how long a "smart" car is (which is, essentially, a roller skate).

However, according to the Federal Motor Carrier Safety Administration (FMCSA), National Highway Traffic Safety Administration (NHTSA), State Departments of Motor Vehicles (DMV), Department of Transportation (DOT), National Safety Council (NSC), and every single Insurance provider, "safe stopping distance" equates to:

The Three-Second Rule: This is the most common guideline for passenger vehicles in ideal conditions. You should count three seconds from the time the vehicle in front of you passes a fixed object (like a road sign) until your vehicle passes the same point.
Expanded Rules: Driving experts recommend extending the following distance in certain situations:

In poor weather (rain, snow): Increase your following distance to four to six seconds or more.
At night or with low visibility: Leave extra space for your reaction time.
With larger or heavier vehicles: Increase your following distance, as more weight increases the braking distance.
On slippery surfaces (ice): Give yourself 10 times the normal braking distance

Essentially, "safe stopping distance is based on the road surface at the point and time you are driving your vehicle.

Maybe the reason people love to tailgate is because they don't know or realize what the danger is? Tailgating is dangerous because:

Reduced reaction time – You can’t stop fast enough if the car ahead brakes suddenly.
Rear-end collisions – One of the most common types of crashes, is often caused by tailgating.
Chain-reaction crashes – On highways, tailgating leads to multi-car pileups.
Aggressive driving risk – Often linked with road rage, intimidation, or reckless driving.

I remember one time I was driving up the I-5 north just past the Tejon Pass and dropped into a swamp of fog 100 miles long up through the San Joaquin Valley (the bread basket of California). I mean, you couldn't see 3 feet in front of you. Cars were reduced from driving 55-100 MPH to a measly 3-5 mph.

Well, most people.

There was one idiot who was honking and hugging everyone's bumper like the fog was our fault. We found him a couple miles up the road wrapped around the rear axle of a semi truck.

The thing is, tailgating is a crime in every state of the union. For example:

California – Cal. Vehicle Code § 21703: Drivers “shall not follow another vehicle more closely than is reasonable and prudent.”

Texas – Tex. Transp. Code § 545.062: Must maintain “assured clear distance.”

New York – N.Y. Veh. & Traf. Law § 1129(a): Must not follow more closely than is “reasonable and prudent.”

Florida – Fla. Stat. § 316.0895: Prohibits following more closely than is reasonable.

Illinois – 625 ILCS 5/11-710: Cannot follow “more closely than is reasonable and prudent.”

Pennsylvania – 75 Pa. Cons. Stat. § 3310: Drivers shall not follow more closely than reasonable.

Ohio – Ohio Rev. Code § 4511.34: “Assured clear distance” and prohibits following too closely.

Michigan – Mich. Comp. Laws § 257.643: Must not follow closer than is “reasonable and prudent.”

Georgia – O.C.G.A. § 40-6-49: Following too closely prohibited.

Arizona – Ariz. Rev. Stat. § 28-730: Must not follow too closely for speed, traffic, and road conditions.

Washington – RCW 46.61.145: Drivers shall not follow “more closely than is reasonable and prudent.”

Colorado – Colo. Rev. Stat. § 42-4-1008: Prohibits following more closely than reasonable.

Virginia – Va. Code § 46.2-816: Following too closely prohibited.

North Carolina – N.C. Gen. Stat. § 20-152: Prohibits following more closely than is reasonable and prudent.

Massachusetts – Mass. Gen. Laws ch. 90, § 14B: Must not follow more closely than is reasonable.

Utah - Utah Code, Title 41 § 41-6a-711 (Following too closely): The operator of a vehicle may not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of the vehicles, the traffic upon, and the condition of the highway.

Wait, what does "reasonable and prudent" mean? The phrase “reasonable and prudent” is the key standard in almost every state’s tailgating statute. It’s intentionally flexible, because lawmakers can’t write a one-size-fits-all “exact number of feet” that works at every speed and in every road condition.

Like I said up above, when a statute says you must not follow more closely than is “reasonable and prudent”, it means:

You must leave enough space to stop safely if the car ahead slows or stops suddenly.
The space must adjust based on:
- Speed (faster = more stopping distance)
- Traffic density (congested traffic = more caution)
- Road conditions (wet, icy, or gravel roads require more distance)
- Vehicle size/weight (trucks need more braking distance than cars)

Legislatures avoid setting a specific distance (like “100 feet”) because safe following distance changes constantly. Instead, “reasonable and prudent” makes it a case-by-case standard, enforced by officers, judges, and juries.

Got that? It's to the cops discretion whether you were tailgating.

So, if the cop says you were driving too close, you probably were. Don't argue the issue because you'll just wind up in cuffs with a resisting arrest charge tacked on for your efforts.

Just sign the ticket and move along.

So, how have courts viewed tailgating? Turns out, not well for the tailgater.

Bexar County, Texas – Manslaughter from Tailgating and Reckless Driving (2025)

A jury convicted a driver for manslaughter following a fatal motorcycle crash near San Antonio, centered on tailgating, speeding, and passing in a no-passing zone. The defendant received a 10-year sentence, plus a concurrent 3-year term for carrying a weapon.
Relevance: Demonstrates how tailgating combined with other dangerous behaviors can elevate charges to serious crimes—even unintentionally causing death.

Roux v. Coffey, Docket #AC46898 (2025)

Case summary: A Connecticut appellate court ruled in January 2025 that Live Nation, the concert promoter, was not liable for the death of a 17-year-old, Luke Roux, who was killed by a driver (Jacob Coffey) who had tailgated outside the Xfinity Theater after drinking and then ran a red light. The court determined that property owners don’t generally bear liability for individuals who consume alcohol on their property and later drive and cause harm.
Significance: The case underscores legal boundaries on premises liability when alcohol and tailgating precede a DUI crash.

Fassett v. Santiam Loggers, Inc., 267 Or. 505, 517 P.2d 1059 (1973) – Truck rear-ended a car after following too closely. Court held that violation of Oregon’s tailgating statute constituted negligence per se, making the trucking company liable.

Harris v. Harman, 253 Va. 336, 486 S.E.2d 99 (1997)

Court: Virginia Supreme Court
Issue: Whether tailgating contributed to the plaintiff's accident.
Outcome: The court found that Harris had been tailgating Harman for a considerable period, which distracted Harman. The jury had to determine if this tailgating was the cause of the accident. This case highlights how tailgating can be a factor in determining negligence.

Garnot v. Johnson, 239 Va. 81, 387 S.E.2d 473 (1990)

Court: Virginia Supreme Court
Issue: Whether the rear driver's tailgating was the proximate cause of the rear-end collision.
Outcome: The court concluded that the plaintiff was entitled to an instruction on following too closely, emphasizing the rear driver's responsibility in maintaining a safe distance.

Meeks v. Hodges, 226 Va. 106, 306 S.E.2d 879 (1983)

Court: Virginia Supreme Court
Issue: Whether the rear driver was following too closely, leading to the accident.
Outcome: The court found that there was a jury question as to whether the rear driver was following too closely, which contributed to the accident.

Bottom line: Slow down, back off and pay attention to the conditions of the road. If you think you're too close or the driver in front of you suddenly taps their breaks and you're having to smash the brakes to avoid an accident, you probably are too close.

So, back the @#%# off my bumper!

Big Brother is Coming for Your Tomatoes

noreply@blogger.com (Mr. Librarian) — Mon, 20 Jul 2026 07:00:00 +0000

While the U.S.A. has its share of problems, there are a whole lot of reasons that I'm grateful to be living in America rather that most anywhere else.

Doggone but there are lots of reasons to be thankful to be an American.

For example, I'm thankful I live in America (ain't it grand?!). I'm thankful for my kids, wife, brothers and sisters, and my dog, Ziggy (isn't he the cutest?).

I'm thankful for clean, running water, an air conditioner that works in the summer heat and (for that matter) electricity that flows freely (or controlled by the government so that it's cold in the winter and hot in the summer). For paved roads and supermarkets that are full of food and other stuff readily available for purchase (instead of just for looking at - like what you might see in most communist countries like North Korea and parts of China).

What I'm not particularly thankful for is government regulation that reaches beyond what it should be.

I bring this up because the other day I was listening to an internet pundit talk about how people's personal backyard gardens are a violation (or can be a violation) of the federal Commerce Clause because it interferes with interstate commerce by reducing the amount of produce they would normally purchase were they not to have a personal garden.

So, before we get too far into this, what exactly is the Commerce Clause?

The Commerce Clause (found in Article I, Section 8 of the U.S. Constitution) gives Congress the power to regulate trade with foreign nations, Native American tribes, and between states. Its main purpose is to prevent individual states from passing laws that restrict trade and to create a unified, national economy.

Because the Constitution doesn't strictly define the word "commerce," the exact limit of federal power is heavily debated. While Congress is supposed to regulate cross-state trade, it has occasionally used this power to regulate seemingly local activities that have a widespread national impact.

For example, the interpretation of what Congress can regulate has expanded significantly over the years. Congress has used the Commerce Clause to:

Set national workplace and safety standards.
Ban discrimination in public places and businesses.
Regulate environmental protections and product quality.

While there is no federal law prohibiting backyard gardens, under some circumstances, Congress could regulate activities associated with personal gardening under the Commerce Clause if those activities substantially affected interstate commerce.

And government kinda did this in 1942 when the SCOTUS handed down its decision in Wickard v. Filburn, 317 U.S. 111 (1942).

Why Wickard is so important is that it endorsed a broad interpretation of Congress's power to regulate economic activity that, in the aggregate, affects interstate commerce.

In 1942, Farmer Filburn grew wheat. He was so good at it that he grew more grew more wheat than permitted under the federal quotas established by the Agricultural Adjustment Act of 1938. The problem was that under the the Agricultural Adjustment Act of 1938, the federal government regulated how much wheat farmer's could produce.

Filburn argued that the excess wheat was intended only for use on his own farm and never entered the marketplace, so Congress lacked authority to regulate it. The SCOTUS reasoned, however, that although Filburn's own wheat production was local and seemingly trivial, if other farmers were to make the same choice, it would collectively reduce demand in the national wheat market.

Ultimately, the SCOTUS said that because the aggregate effect of such conduct could substantially influence interstate commerce, Congress could regulate even purely local production.

So, could the same logic apply to backyard tomatoes?

Legally...Yes.

Practically...almost certainly not. NOTE: that's "almost" as in it hasn't happened, yet.

Suppose you grow:

tomatoes
lettuce
onions
peppers

instead of buying them, using Wickard's reasoning, you have removed yourself from the market.

If everyone did it, national demand for tomatoes, lettuce, onions and peppers would decrease. Therefore Congress could, theoretically, regulate your private backyard garden.

Note: that doesn't mean Congress has done so. It means Congress could and has constitutional authority to regulate private backyard gardens if it so chooses and there is NOTHING you can do about it.

Let's look at another case, shall we: Gonzales v. Raisch, 545 U.S. 1 (2005). Gonzales addressed whether Congress could prohibit the local cultivation and use of medical marijuana that complied with state law.

By 2005, California had legalized growing marijuana for personal medical use.

Angel Raich and Diane Monson argued that the marijuana they used or cultivated solely within California for medical purposes should not be subject to the federal Controlled Substances Act because it never entered interstate commerce.

In a 6–3 opinion written by John Paul Stevens, the Court held that Congress in fact had authority under the Commerce Clause to regulate even purely local, noncommercial cultivation. Consequently, mere possession of said marijuana would be part of a broader regulatory scheme governing the interstate drug market.

So, are backyard gardens unconstitutional? Presently, there is no federal law saying: "You may not grow vegetables in your backyard." Congress simply hasn't regulated ordinary backyard vegetable gardens.

But, when could a backyard garden violate federal law? Several possibilities exist. For example:

1. Protected plants

Growing certain plants could violate federal statutes.

Examples:

Marijuana: Marijuana cultivation is primarily regulated through the Controlled Substances Act (CSA), codified at 21 U.S.C. §§ 801–971.
Coca: Coca is a shrub in the genus Erythroxylum coca native to the Andes of South America. Cultivation of Coca is regulated under the Controlled Substances Act (21 U.S.C. §§ 801–971).
Opium poppies: Like marijuana and coca, opium poppies are regulated primarily through the Controlled Substances Act. 21 U.S.C. § 841(a)(1).

2. Invasive species

The Plant Protection Act (Title 7 of the United States Code, Chapter 104 (7 U.S.C. §§ 7701–7786) authorizes regulation of certain plant pests, noxious weeds, and quarantined plants.

Examples include:

Transporting infected plant: (i.e. moving citrus trees that are infected with citrus greening disease (HLB) across a federal quarantine boundary.
Prohibited species (like Kudzu, Giant Salvinia, Witchweed, or Hydrilla).
Invasive weeds (like Cogongrass, Mile-a-Minute Weed, Purple Loosestrife, Giant Hogweed, or Japanese Knotweed).

3. Federal land

Depending on which federal agency manages the land and what conduct is involved, growing crops on federal land without authorization can violate federal law.

For example, a person who clears a patch of national forest and plants a vegetable garden without a permit could violate regulations prohibiting unauthorized occupancy or use of National Forest System lands under:

Organic Administration Act of 1897

National Forest Management Act of 1976

Regulations in 36 C.F.R. Part 261

So, suppose you were hiking in a national forest and thought: "I'll plant six tomato plants here and come back in August." Even though tomatoes are perfectly legal, you could still be violating federal regulations because:

You are making unauthorized use of federal land,
Altering federal property, and
Depending on the circumstances, installing improvements (such as fencing or irrigation) could also be a violation of federal law.

Unauthorized farming, irrigation, fencing, or cultivation on BLM land can result in administrative, civil, or criminal enforcement under:

Federal Land Policy and Management Act of 1976 (FLPMA)

Regulations in 43 C.F.R.

National parks are managed primarily for conservation and public enjoyment. Planting crops, disturbing vegetation, or altering the landscape generally requires authorization under:

National Park Service regulations in 36 C.F.R. Part 2

4. Environmental laws

Certain gardening activities can implicate: the Clean Water Act

The Clean Water Act is primarily concerned with protecting "waters of the United States" (often called WOTUS). One of the most litigated questions in environmental law is what counts as a protected water or wetland.

Example 1: Filling a Wetland to Expand a Garden

Suppose you own ten acres in Idaho. Behind your house is a low, marshy area that stays wet most of the year. You think: "This would make a perfect pumpkin patch."

So you:

bring in twenty dump trucks of dirt,
bury the marsh,
install drainage pipes,
till the new soil,
plant pumpkins.

What you may not realize is that the marsh is a federally protected wetland connected to a nearby creek.

The federal government could argue that you discharged "fill material" into protected waters without a permit from the U.S. Army Corps of Engineers, potentially violating the Clean Water Act.

Notice: The violation isn't growing pumpkins. The violation is filling the wetland without authorization.

Example 2: Diverting a Stream

Suppose a small stream crosses your property. To irrigate your vegetable garden you:

Build a small earthen dam,
Dig a new channel,
Permanently divert the stream.

Depending on the circumstances and current law, that alteration may require federal or state authorization because you've modified a protected watercourse. Again, the tomatoes are perfectly legal. Changing the stream is the issue.

Example 3: Dumping Soil into a Creek

Suppose you're leveling your backyard for raised beds. Instead of hauling away the extra soil, you push it into the creek behind your house. That soil can be considered "fill material."

The government isn't regulating gardening. It's regulating pollution and filling waterways.

5. Federal agricultural programs

If a farmer accepts federal subsidies, there are often restrictions regarding:

Acreage
Crop type
Conservation requirements

Violations may result in loss of benefits. For example: Corn farmer and the “base acreage + conservation compliance” system:

Say a farmer in Iowa enrolls in a USDA program under the Agricultural Adjustment Act of 1938 (as amended by later Farm Bills, including the modern “Farm Bill” framework).

Farmer then receives federal subsidies based on historical production of corn and soybeans (“base acreage”), plus participation in conservation programs.

Step 1: Acreage restriction (base acreage rule)

The farmer is told: “Your subsidy is based on 500 acres of historically planted corn.”

So even if the farmer owns 800 acres total:

Only 500 acres qualify for payments
The rest is not subsidized under that program

What this does in practice is that the farmer cannot simply expand subsidized production endlessly and collect more payments. The program locks in eligibility based on historical acreage.

Step 2: Crop-type restrictions (program eligibility)

Say the farmer wants to switch from corn to something else: “I think I’ll plant all hemp or pumpkins this year instead of corn.”

Depending on the specific program:

If the land is enrolled in a commodity program, planting certain crops may eliminate eligibility for payments on that acreage
Some programs require maintaining eligible “program crops” or reporting changes that affect payments

Separately, specialty crop programs may require:

Specific crop categories
Compliance with USDA definitions of “covered commodities”

So the subsidy is tied to what is planted, not just ownership of land.

Step 3: Conservation requirements (“compliance condition”)

This is the most important legal hook.

The farmer agrees to comply with conservation rules tied to receiving subsidies under statutes like the Farm Bill conservation compliance provisions.

Example restriction: The farmer has a sloped field that tends to erode into a nearby stream.

USDA requires:

Maintaining a buffer strip of grass near waterways, or
Using contour plowing / no-till practices, or
Not draining certain wetlands (“sodbuster” / “swampbuster” rules)

Step 4: What happens if the farmer ignores it?

Suppose the farmer decides: “I’m going to plow everything right up to the creek so I can plant more corn.”

And also drains a small wetland to expand acreage. Consequences can include:

Loss of federal subsidies
Repayment of previously received funds
Disqualification from future USDA programs

In some cases, violations of conservation compliance provisions can also trigger additional administrative penalties.

The key statutory idea here is that:

These restrictions are not “criminal gardening laws.” They are contract-like conditions attached to federal money. When the farmer accepts subsidies under the Farm Bill framework, they are effectively agreeing: “I will follow USDA rules on land use, crops, and conservation in exchange for payments.”

So, where do state and local regulations come into play? This is where most restrictions/problems actually arise.

1. HOA Rules

HOA rules can become a problem for backyard gardens because they don’t regulate whether you can garden in a general sense. Rather, they regulate how your property must look and be used, and those rules are enforceable through contract law (your HOA agreement) plus fines, liens, and even foreclosure in extreme cases.

Here are a few common, more concrete ways it HOA rules play out:

a. Front-yard vegetable garden bans

A homeowner replaces grass in the front yard with raised vegetable beds (tomatoes, peppers, lettuce).

The HOA rules require:

“Maintained turf grass in visible yard areas,” or
“Landscaping must be ornamental”

Result:

The HOA can demand removal of the garden
Impose daily fines until compliance
In some states, place a lien on the property for unpaid fines

Even though nothing is illegal under state or federal law, it violates a private land-use covenant.

b. “Visibility” and aesthetic rules

A backyard garden may be allowed, but:

Fences above a certain height are prohibited
Compost bins must be screened from view
Rain barrels or irrigation systems must be hidden
Hoop houses or greenhouses may require prior approval

Example: A homeowner installs a small greenhouse to extend the growing season. The HOA rejects it because it is not an “approved structure” or doesn’t match neighborhood aesthetics.

c. Restrictions on structures and raised beds

Some HOAs regulate:

Maximum height of raised beds
Materials (no corrugated metal or untreated wood)
Placement (must be behind a sightline fence)
Prohibition on “agricultural structures”

Example: A homeowner builds 3-foot-high cedar raised beds for a wheelchair-accessible garden. The HOA claims they exceed permitted “landscaping height limits.”

d. “Nuisance” enforcement (odor, pests, appearance)

Even if gardening is allowed, HOAs often have broad nuisance clauses. Example issues:

Compost attracts rodents or insects
Garden becomes overgrown or “weedy” by HOA standards
Chicken manure or compost odors
Visible dead plants or unharvested plots

The HOA can label it a “nuisance condition” and require remediation.

e. Water use and irrigation restrictions

Some HOAs impose rules on:

Visible drip irrigation lines
Watering schedules (especially in drought areas)
Runoff into common areas or neighbors’ property

Example: A drip irrigation system leaks onto a sidewalk and stains it. The HOA requires modification or fines the owner.

The bottom line is that a backyard garden usually becomes an HOA issue not because it’s “agricultural,” but because it may conflict with:

aesthetic standards
uniform landscaping requirements
architectural control rules
nuisance provisions
approval requirements for structures

So the tension is that federal law generally doesn’t care if you grow tomatoes. HOAs often care a great deal about what your yard looks like while you do it.

2. Municipal ordinances

Municipal ordinances can affect backyard gardening because cities regulate land use, property maintenance, and “public welfare” under their police powers. Unlike federal law (which rarely touches home gardening), city codes can directly govern what you can grow, where you can grow it, and what conditions your yard must meet.

height of vegetation
weeds
composting
setbacks
irrigation
nuisance conditions

Here are some typical ways this shows up:

a. Los Angeles, California

Los Angeles generally allows backyard gardens, but regulation comes through zoning, nuisance, and landscape ordinances under the Los Angeles Municipal Code. Common barriers include:

Front yard landscaping requirements in many zones (especially for visible residential frontage)
Restrictions on converting significant portions of front yards to non-landscaped uses
“Public nuisance” provisions if a garden becomes overgrown, attracts pests, or creates runoff issues
Rules affecting accessory structures (greenhouses, tall fencing, sheds used for gardening)

Practical effect: A homeowner can grow vegetables in a backyard, but converting a front yard into a full edible garden can trigger code enforcement if it conflicts with required “landscaped appearance” standards in certain zones.

b. Spokane, Washington

Spokane’s municipal code includes property maintenance and zoning rules that can indirectly restrict gardening. Common issues include:

Vegetation height limits in some residential contexts (weed/unsightly growth rules)
“Nuisance vegetation” enforcement if a garden is perceived as unmaintained or overgrown
Restrictions on accessory structures without permits (greenhouses, hoop houses)
Rules about drainage and runoff into sidewalks or neighboring property

Practical effect: A productive garden is fine, but if it becomes visually “unmaintained” under code definitions, it may be cited as a nuisance.

c. Fort Worth, Texas

Fort Worth regulates property conditions through its code compliance ordinances and zoning rules. Common barriers include:

“Weed and vegetation” ordinances requiring property maintenance standards
Limits on accumulation of brush, compost piles, or organic debris
Restrictions on accessory structures without permits
Enforcement against “unsanitary conditions” (often tied to pest attraction or standing water)

Practical effect: A compost-heavy or densely planted garden can be cited if inspectors classify it as a sanitation or maintenance issue rather than an agricultural use.

d. Charleston, South Carolina

Charleston is more preservation and aesthetics-focused due to historic districts and design review rules. Common barriers include:

Strict rules in historic districts regarding visible yard changes
Requirements that front yards maintain certain “landscaped” character
Restrictions on structures visible from the street (raised beds, greenhouses, fencing)
Design review approval for exterior modifications in protected areas

Practical effect: Even modest front-yard vegetable gardens can face review if they alter the historic visual character of the neighborhood.

Across all cities, the barriers usually fall into five categories:

Aesthetic regulations (must look “maintained” or “landscaped”)
Nuisance laws (odor, pests, overgrowth, water runoff)
Zoning restrictions (what uses are allowed in residential districts)
Building/permit rules (greenhouses, fences, irrigation systems)
Historic or design review overlays (appearance controls in certain neighborhoods)

The key takeaway here is that Municipal law doesn’t typically say: “You may not grow food in your yard.” Instead, it regulates by having regulations that say: “Your property must meet certain appearance, safety, zoning, and maintenance standards.”

And those standards can indirectly limit how large, visible, or structured a backyard garden can be - even when gardening itself is perfectly lawful.

3. Water Restrictions

Water restrictions usually don’t ban backyard gardens directly, but they can make them legally or practically impossible to maintain by limiting when, how, and how much you can irrigate. A number of cities around the country have specific regulations in place that can hamper a person's ability to even grow a backyard garden. For example:

a. Mesa, Arizona (Stage 2 drought restrictions)

Mesa has had formal drought response rules limiting outdoor irrigation. Residents are restricted to:

2 outdoor watering days per week
No watering during mid-day (typically 10 a.m.–5 p.m.)
Enforcement through fines for violations

How might this affects a backyard garden: A vegetable garden may legally exist, but:

You cannot water it daily in summer heat
You must conform to assigned watering days
Midday irrigation (when plants most need cooling) is prohibited

Practical result: A small garden can survive; a high-water garden (corn, squash, raised beds in heat) may become difficult or impossible to maintain.

b. Spanish Fork, Utah (pressurized irrigation + conservation rules)

Spanish Fork uses a metered pressurized irrigation system, meaning outdoor water use is separately measured and billed. Key features include:

Water use is metered and tier-priced (heavy use costs more)
City encourages efficient irrigation systems (drip, smart controllers)
Water waste (runoff, overspray) is prohibited under city code enforcement frameworks

How might this affects backyard gardens:

You can water daily, but it becomes financially punitive at higher usage tiers
Inefficient garden watering (sprinklers, evaporation loss) raises costs quickly
Waste violations (runoff into sidewalks/storm drains) can trigger enforcement

Practical result: Gardens are not banned, but price signals + waste rules strongly discourage water-heavy gardening styles.

c. Lincoln, Nebraska (voluntary + drought-stage watering rules)

Lincoln typically uses a tiered drought plan (voluntary → mandatory restrictions depending on conditions). A typical structure includes:

Assigned watering days based on address or odd/even systems during drought stages
Time-of-day restrictions (often discouraging midday watering)
Requests to reduce outdoor watering substantially during shortages

How this affects backyard gardens:

In normal conditions: gardens are unrestricted
During drought stages:
- Watering may be limited to specific days
- Watering may be restricted to early morning/evening only
- Heavy irrigation may be discouraged or limited

Practical result: Vegetable gardens are usually tolerated, but during drought declarations they are treated the same as lawns; not given special exemption protection.

d. Boston, Massachusetts (MWRA / local drought advisory system)

Boston relies on regional water management advisories (Massachusetts Water Resources Authority + state drought declarations).

Typical measures during drought alerts include:

Requests or requirements to limit outdoor watering to certain days/times
Prohibitions on daytime irrigation during drought emergencies
Encouragement to reduce nonessential outdoor water use (lawns, landscaping, gardens)

How this affects backyard gardens:

In normal conditions: no meaningful restriction
During drought emergencies:
- Watering windows may be limited (morning/evening only)
- Outdoor irrigation may be restricted entirely on certain days
- “Non-essential outdoor water use” can include ornamental gardens

Practical result: Food gardens are not exempt; they may be treated the same as landscaping during severe drought stages.

e. Tulsa, Oklahoma (Water & Sewer Department drought stages)

Tulsa uses a structured drought response plan with escalating stages. Typical restrictions during drought stages include:

Limits on lawn/garden watering days per week
Time restrictions (no midday watering)
Mandatory reduction targets for outdoor water use
Possible bans on certain outdoor watering activities during severe drought

How this affects backyard gardens:

Vegetable gardens are not separately protected
Restrictions apply broadly to “outdoor irrigation”
Higher drought stages can reduce watering frequency to once or twice per week

Practical result: A backyard garden is legally allowed, but watering schedules may not match plant needs, especially in hot summers.

So, even though each city is different, the legal structure is very consistent:

1. Cities do NOT ban gardens. They regulate timing, frequency, method, and volume.

2. Gardens are treated like lawns. Most ordinances define restrictions as: “outdoor watering” or “landscape irrigation”

They rarely distinguish: vegetables vs grass vs ornamentals

3. The real legal mechanism is drought stage authority. Restrictions are triggered by:

Municipal drought declarations
Water supply shortages
State emergency conservation plans

So, cities don't come out and say: “You may not have a backyard garden.” It is: “You may have one, but your ability to irrigate it may be limited by scheduled days, time-of-day bans, or usage pricing during drought conditions.”

So the “barrier” is almost always water availability rules applied broadly to outdoor irrigation, not any law specifically targeting gardening itself.

So, could/would Congress actually ever ban home gardens?

Constitutionally? Probably, yes under current Commerce Clause precedent. If Congress could demonstrate a sufficient effect on interstate commerce under Wickard and Raich, then restrictions to backyard gardens are entirely possibly.

Economically? Most likely, not as it would be extraordinarily expensive because the cost of nationwide enforcement would far outweigh any effect those gardens have on interstate commerce. But then remember those instances where, during the Covid scare, when police went block by block ordering back into their homes? So, maybe.

Politically? Almost certainly, impossible and in an election year, not a chance. Of course, there are those few radical progressives that might actually try and pull something, well, radical but telling a retiree that they can't have their backyard tomatoes would be like taking candy from a baby.

And you can just imagine what that would look like.

A Public Service Announcement

noreply@blogger.com (Mr. Librarian) — Mon, 13 Jul 2026 07:00:00 +0000

For the most part, I don't mind surprises.

Some surprises are fun. Like surprise birthday parties or or gift exchanges at Christmas time.

Other surprises are not so fun. Like the debit card I got the other day. I hadn't applied for it - it just appeared in my mailbox.

Then there was the small print. A whole 12 page booklet of small print.

The one section that caught my attention (the 8th time I read through) said:

Financial companies choose how they share your personal information. Federal law gives consumers the right to limit some but not all sharing. The types of personal information we collect and share includes: Social Security number and account balances, payment history and account transactions, transaction history and purchase history. When you are no longer our customer, we continue to share your information.

It was that last line that really got me. Well that and the notice that if I didn't opt-out of their debit card within 30 days of receipt (of a debit card I never wanted in the first place), that I would forever thereafter have my personal data shared with whomever they wanted.

I opted-out post haste!

Oh, and I didn't tell you the best part. If I held on to this debit card, each time I used said debit card, I would be charged $2.

Reloaded the card: $4

ATM withdrawal Fee: $2

An over-the-counter withdrawal: $4 (or 2.75% whichever is more)

A check request: $15

Foreign Transaction surcharge: 4.0%

Money Transfer Service Fee: $3 per transaction

Debit card transfer Fee: $3

Inactivity Fees (after 60 days): $6/month

Yeah, this is quite the racket.

The thing is, there are lots (that's "lots" as in A WHOLE BUNCH) of financial companies that send out these debit cards in hopes that you, the unsuspecting public will either ignore them (thereby opting-in to their scheme) or start using these debit cards.

I mentioned this to a neighbor the other day and he told me he gets lots of these things. He never thought to read the fine print or opt-out. Instead he always just shredded the cards and thought nothing of it.

Well, he thought nothing of it until I told him about that one section where they share his personal information with their partners forever and ever because he didn't opt-out of future promotions.

Maybe you've had a similar thing happen to you. Maybe you got one of these and wanted to opt-out of future promotions. Do you know what to do?

Following are a few things you can do to stop the promotions and/or get off these marketing lists:

1. Stop credit-related marketing lists

Use the official credit-bureau opt-out service run by OptOutPrescreen.com.

This removes you from lists used by banks for credit cards, insurance offers, many prepaid card offers, loan offers

This is how to do it:

Website: https://www.optoutprescreen.com
Phone: 1-888-5-OPT-OUT (1-888-567-8688)

You can choose:

5-year electronic opt-out (fastest)
Permanent opt-out (requires printing and mailing a short form)

This works because it stops the marketing lists generated by the big credit bureaus:

Equifax
Experian
TransUnion
Innovis

2. Stop general advertising mail

Use the consumer opt-out list from the Direct Marketing Association. Their service is called DMAchoice and their website is located at: https://www.dmachoice.org

This reduces catalog mail, marketing offers, random financial promotions, and many address-broker lists though there is a $2 processing fee for 10 years of protection (Which is a racket but you get what you pay for).

3. LexisNexis marketing profile

One of the biggest consumer data brokers is LexisNexis Risk Solutions. Banks and insurance companies often use it to verify identity, buy targeted mailing lists, and/or check marketing demographics.

How to opt-out / suppress marketing use. First, go to their website at https://consumer.risk.lexisnexis.com

Then complete these 2 steps:

Request your consumer disclosure report
Request suppression of marketing data

It takes all of about 5 minutes and they must comply under federal consumer laws.

4. CoreLogic consumer file

Another giant broker used heavily by lenders is CoreLogic.

They track things like home ownership, property value, mortgage info, and demographic profiles.

Banks often buy mailing lists like “homeowners aged 35-60 with stable income.”

How to Opt-out:

Visit https://www.corelogic.com/privacy and look for “Your Privacy Choices / Opt-Out.”

5. Data Axle (formerly Infogroup)

A massive marketing list provider is Data Axle.

They supply lists used for:

credit offers
insurance marketing
prepaid debit card promotions
catalogs

Opt-out: Visit their website at https://www.data-axle.com/ privacy/ and look for "Do Not Sell my Personal Information."

6. Credit-bureau marketing opt-out

The service run by the credit bureaus is OptOutPrescreen.com.

Good news! Your Social Security Number ("SSN") is optional, (i.e. not required to use this service) and you can opt out using only your name, address, and date of birth.

The SSN field is just used to reduce mistaken identity if two people have similar names. If you’re uncomfortable, just leave it blank.

7. Direct marketing lists

The Direct Marketing Association opt-out service (DMAchoice) does not ask for SSN at all.

With their website located at https://www.dmachoice.org/, they only require name, mailing address, and email (optional).

A safer strategy for identity-theft victims

Given your history, the single most effective protection is placing a credit freeze with the credit bureaus:

Equifax
Experian
TransUnion

A credit freeze prevents new credit accounts from being opened, is free, does not affect your credit score, and can be temporarily lifted when you actually apply for credit.

Many identity-theft victims leave a freeze permanently in place. I've had to do this twice and it works great. It's not really permanent as you have to renew ever 10 years - but that's 10 years of not having to stress about your credit being jacked with.

Note, though, that a freeze with only one bureau isn’t enough. Lenders can check any credit bureau. If only one is frozen, a lender might still pull a report from another bureau and approve credit (because if they're not approving credit applications, they're not making money).

So, and ideally, you should freeze all three major bureaus:

Equifax
Experian
TransUnion

Freezing all three typically takes about 10 minutes total online.

Once frozen, you will not get any no new credit cards applications, no loans requests, no store financing issues, and no fraudulent applications approved. You simply temporarily lift the freeze when you actually need credit.

One thing about Experian. It has been my experience (and, apparently, thousands of other people as well) that Experian is a pain to work with to freeze your credit.

Consequently, if you ever want to submit a freeze to Experian (without the hassle), following are two easier approaches than using their website:

1️⃣ Freeze by phone
Call Experian’s security freeze line: 1-888-397-3742

Tell the automated system you want to place a security freeze. The phone route is often simpler than the online system.

2️⃣ Freeze by mail (low-tech but effective)

You can mail a request with:

Name
Address
Date of birth
Copy of ID
Copy of a utility bill

and send this information to:

Experian Security Freeze
P.O. Box 9554
Allen, TX 75013

They must process it under federal law.

Two other protections identity-theft victims often add

1️⃣ Fraud Alert (extra lender verification)
You can place a 1-year renewable fraud alert so lenders must take extra steps to verify identity before approving credit.

2️⃣ IRS Identity Protection PIN
Identity thieves sometimes shift to tax refund fraud once credit fraud stops.

The IRS offers an Identity Protection PIN (IP PIN) through the Internal Revenue Service. This prevents anyone from filing a tax return in your name without your PIN.

Bonus trick (very effective):

When you get marketing mail:

Look for the tiny line that says something like
“We obtained your name from a third-party data provider.”
Call or email the privacy contact and say:

“Please place me on your internal do-not-solicit list and remove my information from any marketing databases.”

Companies are legally required to honor internal opt-outs.

After doing these two opt-outs most people notice:

far fewer credit card offers
fewer “prepaid debit card” promotions
less insurance junk mail

It usually takes 30–60 days for the reduction to show up.

Having had my identity hit a number of time, I know that tips like these can really help rank and file consumer(s) feel less stressed and more protected.

So, when next you get something in the mail and you think it's a scam or think someone is just out to steal away your hard earned cash or your identity, realize that, yes, it is a scam and someone is just out to steal away your hard earned cash or that someone is out to steal your identity.

So, go with your gut and do everything you can think of to protect yourself.

Word of the Month for July 2026: SOLICITATION

noreply@blogger.com (Mr. Librarian) — Mon, 06 Jul 2026 07:00:00 +0000

Picture it.

You've scrimped and saved and bought your little slice of heaven to call home nestled in the smoky mountains or maybe in somewhere in South Carolina or maybe it was Texas or Montana or...oh, heck, it's my story so South Carolina it is (it's paradise).

Anyway, what you really DON'T want is someone coming to disturb your little slice of heaven so you put up "NO SOLICITATION" or "NO TRESPASSING" signs on your property.

Of course, like mosquitos to a southern BBQ, in less time than you can say Jiminy Cricket you have two dozen solicitors at your door. Before we get too far into this post, let's define what we're talking about.

SOLICITATION generally refers to the act of requesting, enticing, or attempting to obtain something from someone. The term is heavily context-dependent and falls into three primary categories: daily/business requests, criminal law, and sexual offenses.

In the legal context, solicitation is a specific inchoate crime where someone encourages, commands, or pays another person to commit a crime, even if the crime itself is never ultimately carried out.

Example: Hiring or asking someone to commit murder, or paying an undercover officer to perform illegal acts.

In the corporate and governmental sectors, a "solicitation" is an official document (such as a Request for Proposal) distributed by an organization seeking bids from vendors to complete a specific project or provide services.

In everyday contexts, solicitation is the act of asking for money, donations, support, or business.

Example: Door-to-door fundraising for a local cause, telemarketing calls offering a service, or a charity sending mail asking for a financial donation.

Yep, that's the one. I mean, how annoying is it when, even after you post all those NO SOLICITATION or NO TRESPASSING signs that you now have a pestiferous wretch who banging on your door disturbing your peace and tranquility!

Dang but some peoples kids, right?!?

As it relates to commercial or business related solicitation, what we're looking at is:

Pest control salesman
Roofing company
Solar panel salesperson
Security system salesperson

Commercial solicitation receives less constitutional protection than say non-Commercial Canvassing which might include:

Political campaigns
Religious evangelism
Petition circulators
Advocacy groups

These activities receive greater First Amendment protection, although homeowners still have substantial rights to exclude them from their property.

So, does ringing a doorbell normally constitute trespassing?

Short answer, no (generally).

American property law recognizes an "implied license" allowing ordinary visitors to walk up the driveway, approach the front door, knock or ring once, or attempt a brief contact.

This implied invitation applies to:

Neighbors
Delivery drivers
Police conducting a "knock and talk"
Salespeople
Religious canvassers

That's why simply walking to a front door is ordinarily not trespassing.

So, what does a NO SOLICITING sign do?

A properly visible NO SOLICITING sign generally serves as notice that the implied invitation to enter my property for solicitation purposes has been revoked. Or, in other words, without a NO SOLICITING sign:

Solicitor walks up
Rings bell
Leaves
Usually lawful

With a sign:

Solicitor sees sign
Approaches anyway
Rings bell attempting to sell something

Now the solicitor has a much weaker claim that he was authorized to enter. Many courts treat this as evidence supporting trespass.

OK, so what if the solicitor rings repeatedly and refuses to stop?

Yeah, now you're entering a different territory. See, our hypothetical wasn't "Solicitor rings once." We moved on to "Person rings the ever living hell out of the doorbell and refuses to stop until someone answers."

That conduct may implicate:

Trespass

In the context of a person ringing a doorbell and refusing to stop, trespass (specifically criminal trespass) occurs when an individual remains on private property after being explicitly asked to leave or when their continued presence causes a resident to fear for their safety.

Because doorbells are designed for public use, walking up to a front door and ringing it once is typically permitted. However, this "implied license" to be on your property is instantly revoked if:

You verbally tell the person to leave or stop ringing.
The individual refuses to leave, or continues to ring the bell.
The property is blocked by clear "No Trespassing" signs or secured gates

Because the person ignored posted notice, now they're staring down both barrels of the law.

Harassment

In some jurisdictions repeated unwanted conduct intended to annoy or alarm can constitute harassment. In the case where a person repeatedly rings your doorbell and refuses to stop, the legal definition of harassment, as generally applied, occurs when the conduct is a knowing, willful, and repetitive. It is a "course of conduct" that serves no legitimate purpose.

To cross the line from a nuisance into illegal harassment, the behavior must cause a "reasonable person" substantial emotional distress, intimidation, or alarm, and it must actually cause that distress to you. Note, that's "you" as in your person. Not the person across the street or around the corner - YOU must be distressed by the activity.

Disorderly Conduct

If the behavior is excessive enough, ringing a doorbell and refusing to stop generally falls under "disturbing the peace." Legally, this action constitutes disorderly conduct if the person is making unreasonable noise, intentionally causing public or private annoyance, and continues the disruption after being clearly asked to stop.

Local Solicitation Ordinance Violations

Many cities require solicitors to:

Have permits
Respect no-soliciting signs
Leave immediately when told

Violations can lead to citations or fines.

As far as property rights go, Texas arguable has the strongest laws in place for property owners.

Under TEXAS Penal Code § 30.05, a person commits criminal trespass if they enter or remain on property after receiving notice that entry is forbidden or after being told to leave. The statute specifically recognizes posted signs as valid notice.

The practical effect of Texas law is that if the homeowner says: "Leave my property" and the solicitor remains, that is where criminal trespass becomes very clear under Texas law.

MINNESOTA generally requires either:

Posted notice against entry, or
A direct order to leave.

A salesperson who briefly walks to the front door will often argue they were acting under the normal implied license to approach a residence. However, according to Minnesota statute § 609.605, entering or remaining on property after being told not to enter or after notice that entry is prohibited.

In NEBRASKA, Neb. Rev. Stat. § 28-521 (Second Degree Criminal Trespass) holds that a person commits trespass if:

"knowing that he or she is not licensed or privileged to do so, he or she enters or remains in any place as to which notice against trespass is given by:

(a) Actual communication;

(b) Posting reasonably likely to come to the attention of intruders; or

(c) Fencing or enclosure."

So, in Nebraska, if it's posted, you hear someone say "LEAVE", or the house is fenced off, stay away.

In NEVADA specifically NRS § 207.200 makes it a misdemeanor to:

"willfully go or remain upon any land or in any building after having been warned ... not to trespass."

The statute also prohibits entering property: "with intent to vex or annoy the owner or occupant."

That language becomes interesting when analyzing a solicitor who repeatedly rings a doorbell or refuses to leave.

CONNECTICUT divides criminal trespass into degrees:

CGS § 53a-107 – Criminal Trespass 1st Degree
CGS § 53a-108 – Criminal Trespass 2nd Degree
CGS § 53a-109 – Criminal Trespass 3rd Degree

For a typical homeowner/solicitor situation, § 53a-109 (Criminal Trespass 3rd Degree) is the provision most likely implicated because it covers knowingly entering or remaining on premises without license or privilege.

What if you tell solicitors to leave and they refuse? This is where trespass becomes strongest. The classic trespass sequence is:

Person enters property
Owner tells person: "Leave my property."
Person refuses

At that moment, in most jurisdictions, you've got a much clearer trespass situation and looking at the above noted jurisdictions, many criminal trespass statutes specifically require:

Notice against entry; OR
Notice to depart

and refusal to comply.

So, in addition to have a NO SOLICITATION sign, does posting a NO TRESPASSING sign change things?

Again, short answer: Yes. Yes, it does.

A NO TRESPASSING sign is generally broader. Where a NO SOLICITING sign says "Don't come here to sell stuff," a NO TRESPASSING sign says "You don't have permission to enter my property."

The legal significance is usually greater because it addresses entry itself rather than merely the purpose of entry.

Several courts have discussed how "No Trespassing" signs can revoke the implied license normally allowing people to approach a residence.

For example, in Brown v. State, 152 So. 3d 619 (Fla. 3d DCA 2014), Police violated the Fourth Amendment by entering the curtilage of Brown's home and conducting a "knock-and-talk."

The court focused on several facts, including the fact that

The property was enclosed by not one but TWO fences.
Access to the front door required passing through two gates.
There were multiple "No Trespassing" signs posted on the outer fence.
The mailbox was outside the fence.
The home's curtilage was not visible from outside the fences.
Brown testified that he did not expect uninvited visitors in the enclosed area.

Even faced with a veritable maze, police were determined to get in despite the repeated warnings against trespassing. Because the defendant had taken sufficient steps to exclude the public the court found he had established a reasonable expectation of privacy.

Even if a person hasn't created a fortress like what happened in Brown v. State, by posting both NO TRESPASSING and NO SOLICITING signs, the homeowner is communicating:

Entry is not authorized.
Solicitation is specifically prohibited.

From an evidentiary standpoint, this makes it much harder for a solicitor to argue "I thought I was welcome."

Whether it increases criminal penalties depends on the applicable state statute or local ordinance.

Usually:

The signs don't automatically multiply penalties.
They strengthen proof that notice was given.

The bigger question is whether police will enforce the laws against those perpetrating trespass and solicitation?

The answer is: Sometimes (yeah, sorry about that).

If the solicitor:

Knocks once
Leaves

Most officers are unlikely to make an arrest.

If the solicitor is abusive, and

Ignores obvious signs
Refuses to leave
Returns repeatedly
Becomes aggressive
Rings continuously

Police are much more likely to view it as a legitimate trespass complaint. The exact response depends heavily on state law and local ordinances.

Some key cases that deal with these issues include:

Breard v. City of Alexandria, 341 U.S. 622 (1951). The Court recognized the homeowner's right to be left alone and noted that householders may protect themselves from unwanted solicitation. The Court stated that "The homeowner has the right to determine whether he shall receive strangers as visitors."

That principle is often cited when discussing unwanted solicitation.

In Watchtower Bible & Tract Society v. Village of Stratton, 536 U.S. 150 (2002), the SCOTUS struck down a permit requirement for door-to-door canvassing but specifically recognized that homeowners may protect themselves through no-solicitation signs and by refusing contact.

In Martin v. City of Struthers, 319 U.S. 141 (1943), the SCOTUS protected door-to-door advocacy but emphasized that homeowners retain the right to decide whether they want to receive visitors.

I guess the moral to this story is: Don't piss people off by ringing their doorbells over and over and over again. I mean, come on, life is hard enough. If someone is going to go through all the trouble to finding their slice of heaven, the least we the people can do is leave them in peace.

Make a note of that.

Sometimes the Little Guy Wins

noreply@blogger.com (Mr. Librarian) — Mon, 29 Jun 2026 07:00:00 +0000

Not that you were asking but do you (gentle reader) know why I got into law?

First and foremost, it was to help the little guy.

More to the point, to help those who didn't know how to help themselves.

Overly opressive landlords, power hungry employers, school bullies, tyrant police officer - I just wanted to help alieve the pain aflicted by others on people who couldn't didn't know where else to turn - and I did a pretty good job of it until I couldn't and then I found other ways to help.

Like writing a blog about law and legal stuff to help people know where to go to get more information on their problems.

So, it weighs heavy on my mind when I read stories about people being oppressed. Note that's "oppressed," not entitled. There are a whole lot of people out in public land that think they deserve retribution simply because they breathe oxygen.

Jerry Hartfield is not one of those entitled ones.

See, back in 1976, Eunice Lowe - a white woman - was found murdered and sexually assaulted at a bus station where she had worked in Bay City, near Houston. Hartfield, a black man from Kansas, was quickly arrested because his fingerprints were on a Dr. Pepper bottle found at the station.

You know, I'll bet other people's fingerprints were found at the crime scene but were they arrested?! Bunch of hicks, they were.

Anyway, and shortly after his arrest, Hartfield confessed to the crime. That's "confessed" as in coerced. Also how in blazes can a black man with an IQ in the 50's or 60's be said to be able to understand how to confess to anything? Regardless and consequently, Hartfield was convicted by a jury of his "peers" and was sentenced to death.

On Sept. 17, 1980, the Texas Court of Criminal Appeals ordered him retried because prosecutors had improperly dismissed a juror over her reservations about the death penalty. However, instead of holding a new trial, prosecutors tried (for three years) to convert Hartfield’s death penalty to a life sentence.

Uh huh.

They failed in that endeavor so, in 1983, the Texas appeals court again ordered a new trial - which never happened.

In 2006, with the help of a fellow inmate Hartfield filed a writ of Habeas Corpus and seeking a speedy trial which the court(s) rejected.

After years of being bounced around, Harfield turned to the federal system in 2009 to clear up many of the obstacles that were impeding his case.

However, in 2011, a federal judge rejected Hartfield’s claims because, the judge wrote, Hartfield had failed to exhaust his state remedies.

Are you kidding me? A comedy of errors this was!

In 2013, 30 years after it had ordered Hartfield to get his new trial, the Texas Court of Criminal Appeals acknowledged at last that Hartfield had been improperly imprisoned for all those years. But it, too, refused to order him released or retried.

Oh, the humanity!

Finally, in August 2015, Hartfield FINALLY got his second trial. The problem was that two key witnesses who had testified against Hartfield in 1977 had died, so their original testimony was read into the record annnnd, Hartfield's attorney could not be cross-examined.

Other problems that affected this second trial was that none of the physical evidence — the pickaxe that was allegedly used in the murder, a car allegedly used by Hartfield, or DNA from the victim — was still around and jurors could not hear mitigating evidence from Hartfield’s family since most of them had also died.

Of course none of that mattered because the jury convicted Hartfield again for murder. However, this time, Hartfield's attorneys were on the ball and appealed this decision for violating Hartfield's right to a speedy trial under the 6th Amendment (note: he had been already incarcerated for the better part of 30 years!).

The Texas appeals court agreed and after 35 years, Jerry Hartfield was released.

But all's well that ends well, right?!

Yeah, no. All the legal wrangling, all the judicial missteps, all the dinking around with a person's life only goes to show how messed up this legal system of ours is.

I mean, Jerry Hartfield not only splipped throught the proverbial cracks of the legal system - he was royally screwed out of a third of his life!

I suspect that if there's a silver lining to all this, it's that Jerry got his day in court and the system finally worked in his favor. Thirty-five (35) years late but at least the court system finally got its act together.

Good on that.

Some People are Just Camera Shy

noreply@blogger.com (Mr. Librarian) — Mon, 15 Jun 2026 07:00:00 +0000

Just the other day, I was looking at police videos and I see one where a cop says, "it's illegal to record police."

Now, why would a cop say such a silly thing?

I mean, unless you're doing something sketchy, why would a police officer be so put off for being recorded?

Many police officers claim it’s illegal to record them not because the law actually says that but because they just don't want you to.

In the United States, the general rule is that recording police performing their duties in public is protected by the First Amendment to the United States Constitution, as long as you don’t interfere with their work.

So, outside of the interfereing with their work thing, what other reason might there be for police being nervous being recorded?

1. Outdated or incomplete training

For years, the law around recording police was unsettled in some areas. But many federal courts have since ruled that citizens have a constitutional right to record police in public. Examples include cases from federal appellate courts such as:

Glik v. Cunniffe (653 F.3d 78 (1st Cir. 2011) – clearly recognized the First Amendment right to record police in public.
Fields v. City of Philadelphia (862 F.3d 356 (3d Cir. 2017) – affirmed that recording police is protected even if the person filming isn’t directly involved.
Turner v. Driver (848 F.3d 678 (5th Cir. 2017) – recognized the right to record police, though it granted qualified immunity to officers because the law wasn't clearly established earlier.

The problem is that many officers simply haven’t been updated on these rulings (or just don't care thinking they are untouchable).

2. Confusion with wiretapping laws

Police sometimes cite “wiretapping” or “two-party consent” laws in their zeal to prohibit recording them. The problem is that those laws generally apply to private conversations, not public interactions with police.

For example:

In ACLU v. Alvarez (679 F.3d 583 (7th Cir. 2012), Illinois tried to use its eavesdropping law against people recording police. The court ruled that applying the law this way violated the First Amendment.

The laws surrounding recording is pretty much the same in most states, for example:

In Utah, courts treat recording police in public as protected speech under the First Amendment.

Limits

Must not interfere with police duties
Must obey lawful orders to step back
Cannot trespass or obstruct an investigation

As it relates to recording private conversations, Utah is a one-party consent state under Utah Code §77-23a-4, meaning you can record a conversation if you are a participant in it.

In Texas, you can record police activity visible from public spaces like sidewalks or roads.

Limits

Cannot interfere with duties (Texas Penal Code §38.15)
Must remain at a safe distance
Cannot trespass or break other laws

Audio consent law: Texas is one-party consent under Texas Penal Code §16.02. Meaning you can legally record your own interaction with police.

In California, courts hold that officers have no reasonable expectation of privacy while performing duties in public. The state even passed a “right to record police” law confirming this.

Limits

Cannot obstruct or delay officers (Ca. Penal Code §148)
Cannot secretly record private conversations

Audio consent law: California is two-party consent under Penal Code §632 for confidential communications (meaning that both parties much know that the conversation is being recorded). Note that this rule does NOT apply to public police encounters because they are not confidential.

In New York, recording police in public is legal and explicitly protected. New York law recognizes the right to document police activity without interference.

Limits

Cannot interfere with police operations
Cannot trespass or obstruct

Audio consent law: New York is one-party consent for recording conversations.

In Wyoming, recording police in public is legal under First Amendment principles.

Limits

Cannot interfere with police
Cannot trespass or violate other laws

Audio consent law: Wyoming is one-party consent.

In Indiana, recording police in public is legal if you are in a place you’re allowed to be and not interfering. Indiana courts have specifically recognized a First Amendment right to record police activity in public.

Limits

Cannot interfere with law enforcement duties
Must comply with lawful safety orders

Audio consent law: Indiana is one-party consent.

Generally, if the officer is speaking in public while performing official duties, courts usually consider that NOT private.

3. “Interference” concerns

Recording can become illegal if it actually interferes with police duties. Officers sometimes stretch this idea. For examples, a recording could legally become interference where the person recording is:

Standing too close during an arrest
Blocking movement
Ignoring lawful safety orders

But simply filming from a reasonable distance is not interference.

4. Control of the scene

From a practical standpoint, officers are trained to control situations. Cameras introduce:

accountability
evidence against them
public scrutiny

Some sketchy officers, therefore, discourage filming even when it’s legal because no one likes to have witnesses around when they're doing something sketchy.

5. Qualified immunity dynamics

Because of the doctrine of Qualified Immunity, officers sometimes face little personal consequence if they incorrectly order someone to stop recording—especially if courts say the law wasn't “clearly established” at the time.

That incentive structure can reinforce bad claims about legality. As a practical rule in most of the U.S., you can record police if:

You are in a public place
You do not interfere
You do not secretly record private conversations where state law prohibits it

So, to summarize,

Anyone can record a cop on the street in public and
Any police officer who says otherwise is just wrong and is probably just wanting to engage in something sketchy or just wants to feel all self-important.

Yeah, that's my guess.

Staying In Your Lane Isn't Just About Cars

noreply@blogger.com (Mr. Librarian) — Mon, 08 Jun 2026 07:00:00 +0000

What do you think about when you're driving out and about?

Me? I think about crazy pedestrians who jump off the curb and right out in front of me when I'm driving.

Well, at least I do now given that the other day while I was driving along listening to David Bowie sing about Modern Love, a kid on a skateboard and head buried in his cell phone jumped off the curb and into my lane mere seconds in front of my car!!!

No crosswalk and no traffic lights around for at least 200 feet.

Nope, kid just decided that specific location (which just happened to be right in front of my car) was where he was going to cross the street and were it not for my cat-like reflexes (and my brakes), that kid would have been a greasespot on the asphalt.

Yeah, I think about crazy pedestrians a lot, these days.

The thing is, while most people think that pedestrians always have the right of way, I got to wondering if that is the case in every case?

Turns out pedestrians only have the right of way if they're following the rule of law.

Wait - rule of law? What's that?!

At its core, the rule of law is the principle that: Everyone—citizens and government alike—is bound by publicly known, consistently applied laws, enforced through fair procedures.

A few key pieces make that real (often discussed in constitutional law):

No one is above the law (not even police or officials)
Laws are clear and predictable so people can follow them
Equal application—similar situations are treated similarly
Due process—fair procedures before punishment
Independent courts to interpret and apply the law

In the United States, these ideas are grounded in the Constitution especially through due process and equal protection principles.

So, what is the rule of law as it applies to pedestrians?

The rule of law doesn’t treat pedestrians as a special class that always “wins.” Instead, it creates defined rules for everyone using the road—drivers and pedestrians—and holds both accountable.

As this all relates to pedestrians, under state traffic laws, pedestrians have certain legal duties. The same body of law that imposes liabilities on drivers also imposes obligationus on pedestrians such as:

Pedestrians must yield when crossing outside a crosswalk (jaywalking laws)
Pedestrians must obey traffic and pedestrian signals
Pedestrians must not step into traffic creating an immediate hazard

This is the rule of law limiting pedestrian behavior.

Notwithstanding the general principle that cars (and other vehicles) must yield to pedestrians, what are some ways in which pedestrians do not have the right of way and should be looking out for vehicles?

1. Crossing outside a crosswalk (“jaywalking”)

Jaywalking is the act of pedestrians crossing a street illegally or unsafely, typcially outside of a designated crosswal, mid-block, or against traffic signals. It is a traffic violation in many jurisdictions, intended to ensure road safety by directing foot traffic to marked intersections.

For example, Utah's jaywalking statute can be found in Utah Code § 41-6a-1003(1) and states that pedestrians may not cross anywhere other than a marked or unmarked crosswalk.

Other similar state statutes include:

Alabama Code § 32-5A-212 (2024): Pedestrians crossing outside a crosswalk

§ 32-5A-210: Must obey signals
§ 32-5A-211(b): Cannot step into traffic creating an immediate hazard

Florida Stat. § 316.130: Pedestrians must yield to vehicles outside of a crosswalk, must obey pedestrian signals, and cannot suddenly leave curb into traffic.

North Carolina Gen. Stat. § 20-174: Pedestrian must yield to vehicles outside of crosswalk and cannot walk into path of close vehicle.

Arizona Rev. Stat. § 28-793: Pedestrians must yield to vehicles outside of crosswalk, must use crosswalks when available between intersections, and no diagonal crossing unless allowed.

Nebraska Rev. Stat. § 60-6,153: Pedestrian must yield right-of-way out of crosswalks, must obey traffic signals, cannot suddenly enter roadway.

South Dakota Codified Laws § 32-27-4: When crossing outside a crosswalk in business/residential areas, must yield to vehicles.

2. Ignoring available crossing infrastructure

Ignoring available crossing infrastructure means a pedestrian chooses not to use a provided safe/legal crossing (like a crosswalk or pedestrian bridge) and instead crosses the road somewhere else.

This usually includes:

Marked crosswalks (painted lines)
Unmarked crosswalks at intersections
Traffic signals / pedestrian signals
Pedestrian bridges or tunnels
Designated crossing zones (like school crossings)

For example: Utah Code § 41-6a-1003(2): A pedestrian crossing a roadway at a point where a pedestrian tunnel or overhead pedestrian crossing is provided must yield the right-of-way to all vehicles on the roadway.

Other related state statutes include:

Ohio Rev. Code § 4511.48: If there’s a designated crossing nearby, you can’t just cross anywhere you want.

California Vehicle Code § 21955: Between adjacent intersections controlled by traffic signals or police officers, pedestrians shall not cross the roadway except in a crosswalk.

Washington RCW 46.61.240 & RCW 46.61.235: Pedestrians crossing outside crosswalks must yield to vehicles. Where adjacent intersections have signals, pedestrians must use crosswalks.

3. Crossing against traffic signals

Crossing against traffic signals means that when a pedestrian enters or continues crossing a roadway when the traffic control signal says they should NOT cross the street. While covered in related sections (e.g., pedestrian signal laws), the general rule is: Where a pedestrian is crossing on a “Don’t Walk” signal, the pedestrian is violating the law and they have no right of way.

Related state statutes include:

New York Vehicle & Traffic Law § 1112 states that when the sign says:

“Walk” → pedestrian may proceed
Flashing “Don’t Walk” → may finish crossing, but should not start
Steady “Don’t Walk” → must not enter the roadway

Massachusetts Gen. Laws ch. 89, § 11: Where traffic signals exist, pedestrians may only cross in accordance with them. Entering on “Don’t Walk” = unlawful crossing.

Indiana Code § 9‑21‑17‑2 notes that:

Flashing or steady “Walk” → a pedestrian may proceed across the roadway in the direction of the signal, and vehicles must yield.
Steady “Don’t Walk” → a pedestrian may not start to cross the roadway in that direction.
Flashing “Don’t Walk” → a pedestrian may not start to cross; if already crossing on “Walk,” they must proceed to the sidewalk or safety island.

4. Stepping into traffic suddenly (immediate hazard)

Stepping into traffic suddenly (immediate hazard) means a pedestrian leaves a place of safety (like a curb) and enters the roadway so abruptly that a nearby driver cannot reasonably stop or avoid them.

In that situation, the pedestrian is violating the traffic laws and typically must yield the right-of-way because they created a dangerous, unavoidable condition.

Utah Code § 41-6a-1002(1)(c) states that a pedestrian may not suddenly leave a place of safety and enter the path of a vehicle that is too close to stop. Even in a crosswalk, this can remove right-of-way protection.

Related state statutes:

Oregon Revised Statutes § 814.040: says a pedestrian commits a traffic offense if they:

(a) Suddenly leave a curb or other place of safety and move into the path of a vehicle that is so close as to constitute an immediate hazard
(b) Fail to yield to vehicles when crossing outside crosswalks
(c) Fail to yield the right-of-way generally

Montana Code Annotated § 61‑8‑502 states:

When signals are not in place, drivers must yield to pedestrians in crosswalks, but a pedestrian may not suddenly leave a curb or other place of safety and walk or run into the path of a vehicle that is so close that it is impossible for the operator to yield

Rhode Island General Laws § 31‑18‑3 provides:

Drivers must yield to pedestrians in crosswalks when signals aren’t operating, but no pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield.

5. Crossing where crossing is restricted

“Crossing where crossing is restricted” means a pedestrian enters or crosses a roadway at a location or in a manner that the law specifically prohibits, such as between intersections with traffic signals, on highways, or in areas marked “No Crossing.” Violating these restrictions removes the pedestrian’s right-of-way and can be treated as a traffic violation.

Utah Code § 41-6a-1003(3)–(4): provides that pedestrians are not permitted to cross between signalized intersections except at crosswalks and no diagonal crossing unless allowed by signal

Related state statutes include:

Mississippi Code § 63‑3‑1105 states that:

A pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection must yield the right‑of‑way to all vehicles.
A pedestrian crossing where a pedestrian tunnel or overhead crossing is provided must yield the right‑of‑way to vehicles.
Between adjacent intersections at which traffic control signals are in operation, pedestrians shall not cross except in a marked crosswalk.

Arkansa Code § 27‑51‑1204: provides that between adjacent intersections at which traffic control signals are in operation, pedestrians shall not cross at any place except in a marked crosswalk.

Michigan Comp. Laws § 257.613:

Pedestrians facing traffic control signals may only proceed within a marked or unmarked crosswalk when the signal permits, and cannot legally start crossing outside of that.

General Michigan pedestrian rules (public guidance)

Pedestrians are expected to use crosswalks at signalized locations and not cross in unsafe, unmarked mid‑block areas when signalized crossings are available.

6. General principle: pedestrians only have "conditional" right of way

Even where pedestrians usually have priority (like crosswalks), the law still limits them and:

Drivers must yield only when the pedestrian is lawfully in the crosswalk
That duty disappears if the pedestrian acts unpredictably, violates crossing rules, and creates an immediate hazard

I guess the moral to this story is pedestrians do NOT have the right of way when they:

🚫 Jaywalk
🚫 Ignore signals
🚫 Step into traffic suddenly
🚫 Cross where prohibited
🚫 Fail to use designated crossings

But drivers should still probably try to avoid collisions and can still be partially liable if they run over people in the roadway.

Too bad, that.

Word of the Month for June 2026: Exploitation

noreply@blogger.com (Mr. Librarian) — Mon, 01 Jun 2026 07:00:00 +0000

So, I was wandering through social media land the other day and I came upon a video where a stranger says hello to a child (young female) who is holding her mother's hand.

Mother asks, "do you know that man?" to which Child says no - I don't. Mother looks back at stranger with a grimmace.

Later, another stranger wishies Child a happy birthday. Child is confused and,...well, why don't you have a looksee at the video and see if it doesn't hit home with you?

Why this got my attention is what with all the talk about Jeffrey Epstein, I would think posting pictures of your kid(s) and other details of their lives online is just another form of child exploitation. Before we get any deeper into this, let's define what we're talking about as it relates to exploitation.

EXPLOITATION is a form of abuse where an individual or group takes advantage of an imbalance of power to manipulate, coerce, or deceive a person into performing acts—or being used for acts—that benefit the exploiter, usually in exchange for something the person needs or wants, such as affection, money, or food. This abuse is fundamentally about the power imbalance, meaning that even if a person appears to "consent" or initiates the interaction, they are still considered a victim.

The problem is that under U.S. law, parents generally control the legal rights of their minor children, including decisions about publicity and privacy. That means a parent usually has authority to share photos of their child.

There is no general federal law prohibiting parents from posting pictures of their children on social media. Most laws instead regulate companies or explicit exploitation.

Two key federal laws show the focus:

Children's Online Privacy Protection Act (COPPA)
- Regulates websites collecting data about kids under 13.
- It controls companies, not parents posting pictures.
Child Pornography Prevention Act
- Criminalizes sexual or exploitative images of minors.
- Innocent family photos normally do not fall under it.

So legally speaking, the system assumes parents are acting in the child’s best interests. Even though posting photos is usually legal, it does becomes illegal in certain circumstances.

A. Sexualized or exploitative images

If an image is sexualized or intended for exploitation, it can violate federal child-exploitation laws.

Relevant laws include:

Adam Walsh Child Protection and Safety Act
Federal child pornography statutes
Under 18 U.S.C. § 2251 (Sexual exploitation of children), a person commits a federal crime if they: employ, use, persuade, induce, entice, or coerce any minor to engage in… sexually explicit conduct for the purpose of producing any visual depiction of such conduct.
18 U.S.C. § 2252 (Certain activities relating to material involving the sexual exploitation of minors) criminalizes knowingly transporting, receiving, distributing, possessing, visual depictions of minors engaged in sexually explicit conduct.
18 U.S.C. § 2252A (Certain activities relating to material constituting or containing child pornography) criminalizes distribution, receipt, possession, access with intent to view child pornography using computers or interstate commerce (internet).
18 U.S.C. § 2256 (Definitions for Chapter 110) Defines Explicit Conduct to include:
(i) sexual intercourse
(ii) bestiality
(iii) masturbation
(iv) sadistic or masochistic abuse
(v) lascivious exhibition of the genitals or pubic area.

That last phrase is where courts apply the Dost test (under United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986)).

State exploitation laws
Every state has parallel statutes criminalizing sexual exploitation of minors. Here are a few examples:
Utah Code § 76-5b-201 (Sexual exploitation of a minor): A person commits sexual exploitation of a minor if they: produce, possess, distribute, or view material depicting a minor engaged in sexually explicit conduct. Utah treats this as a second-degree felony or higher.
Caifornia Penal Code § 311.4 (Use of a minor in producing obscene matter): Criminalizes employing or coercing a minor to participate in sexual conduct for visual material.
Tex. Penal Code § 43.26 (Possession or Promotion of Child Pornography): Criminalizes knowing possession or distribution of visual material depicting a minor engaged in sexual conduct.
N.Y. Penal Law § 263.05 (Use of a Child in a Sexual Performance): Criminalizes employing or inducing a child to engage in sexual conduct for visual depiction.

Why these statutes matter for a social-media scenario is because in the vast majority of family-photo situations, these laws do not apply, because:

the images are not sexually explicit
child are not engaged in sexual conduct
there is no intent to create sexual material.

However, they can apply if someone posts images that meet the statutory definition of:

lascivious exhibition
sexual conduct
sexually explicit performance

even if the image originally came from a family setting. Courts evaluate these situations on a case-by-case basis using the United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986) factors.

B. Sharing private information

Posting identifiable details can create legal problems if it crosses into:

harassment
stalking
doxxing
publication of private facts

For example, revealing address, school location, or personal data could lead to civil liability in some circumstances.

C. Commercial exploitation of children

This is the fastest-growing legal area. “Family influencer” accounts sometimes earn large amounts of money from videos or photos featuring children. Some states now regulate this.

Example:

Utah H.B. 322 (2025), codified primarily in Utah Code Title 34A (Labor in Private Employment)

Requires parents earning significant income from monetized content featuring a child to set aside a portion of earnings in a trust for the child.
Allows a person who appeared in social-media content as a minor to request deletion or editing once they reach adulthood

Illionois 820 ILCS 205/1–22 (Illinois Child Labor Law amendments); enacted by SB 1782 (2023).

Applies when a child appears in 30% or more of monetized online content.
Requires a percentage of earnings to be placed in a trust account for the child.
Allows children to sue parents for unpaid compensation after reaching adulthood.

Minnesota H.F. 3488 (2024) amending state child labor statutes.

Requires compensation and trust accounts for minors appearing in monetized social-media content.
Children under 14 cannot appear in certain monetized content work.
Grants the right to request removal of content later in life.

Arkansas. Code Ann. § 11-6-101 et seq. (amended by Act 396 of 2023).

Expands child labor laws to include minors appearing in monetized digital content.
Requires recordkeeping and compensation protections similar to child-performer laws.

Montana Code Ann. Title 41 (Child Labor).

Requires earnings derived from minors appearing in monetized content to be preserved in trust accounts.
Provides financial protections modeled after child-actor statutes.

Hawaii Revised Statutes § 390-2 (child labor law).

Includes online content creation within the definition of theatrical employment.
Requires earnings protections similar to the Coogan law.

For point of reference, the Coogan law is named after child actor: Jackie Coogan. He was a famous child star in the 1920s who appeared in the film The Kid (1921) with Charlie Chaplin.

Coogan earned millions as a child actor, but when he became an adult he discovered that his parents had spent nearly all of his earnings. He sued his mother and stepfather in 1938. The public outrage from that case led California to enact a series of statutes protecting child performers' earnings.

In recent years, a new concept called “Sharenting” has sprung up. Sharenting (referring to a blend of "sharing" and "parenting") is the practice of parents regularly posting photos, videos, or detailed personal information about their children on social media and internet platforms.

Sharenting is a widespread phenomenon driven by pride, community, and documenting milestones, but it raises significant concerns regarding child privacy, safety, and long-term digital footprints.

A few legal issues that arise from Sharenting include:

Children cannot consent to a permanent digital record
Predators may collect images
Identity theft risks
Reputational harm later in life

A related phenomenon called Digital Kidnapping has also arisen where strangers take a child’s photos and pretend the child is theirs online.

The core legal problem is this: Parents have a constitutional right to raise their children, and courts are reluctant to interfere with ordinary parenting decisions. To criminalize ordinary photo sharing, a government would have to overcome:

First Amendment speech issues
Parental rights doctrine
Enforcement problems

So lawmakers usually regulate extreme cases, not normal family behavior.

OK, that's all well and all but where might the law go in the future? As it turns out, there is a growing movement to treat children’s online exposure more like child labor in entertainment.

Possible future regulations being discussed include:
Digital consent rights for children
Limits on monetized family content
Mandatory earnings trusts (like child actors)
A child's right to erase online childhood content

Some European countries have already recognizing stronger “child digital privacy” rights.

I guess what all this boils down to is parents really need to get a grip and know that while they say they are looking out for their kids, 'rents need to realize that EVERYTHING they post online is seen by everyone.

NOTE: that's EVERYONE as in not just the intended audience (friends and family), but potentially any person or system that can access, copy, intercept, store, or redistribute the image at any stage of its existence on the internet.

So, how all this works is: once a photograph is uploaded to a social media platform such as Facebook, X, or Instagram, it becomes accessible to the platform itself, meaning employees, automated moderation systems, content-analysis algorithms, and internal data-processing tools that scan images for policy enforcement, advertising signals, or machine-learning training.

From there, access may extend to the people the parent intentionally shares it with, but also to anyone those recipients show, screenshot, download, forward, repost, or otherwise distribute the image to, whether deliberately or casually.

Even when privacy settings limit viewing to a smaller group, any member of that group can duplicate the image instantly and send it outside the platform through email, messaging apps, cloud storage, or other social networks, effectively dissolving the original privacy boundary.

Beyond the human viewers, “EVERYONE” can also include the technical infrastructure that touches the file. The image may pass through servers, backup systems, content-delivery networks, and caching layers that store copies for speed and reliability.

Those systems may be operated not only by the original platform but also by third-party vendors providing cloud hosting, security scanning, or analytics services. In addition, automated web crawlers, scraping tools, or malicious actors may obtain copies if the content becomes accessible beyond a strict private setting, and once a single copy leaves the original environment it can propagate indefinitely across forums, databases, or file-sharing networks without the knowledge of the original poster.

In the most expansive interpretation, “EVERYONE” could encompass the platform company and its employees, contractors and cloud providers, the intended viewers and anyone they share the image with, unknown third parties who acquire copies through technical or social means, automated systems that index or analyze the image, and any future recipient who encounters the file long after the parent believed it remained within a limited circle.

So, to summarize, when you post your child's photograph online so that "EVERYONE" see it, (in this case "EVERYONE" means that the potential audience is not merely a list of friends but an open-ended chain of humans and machines capable of accessing or redistributing the data once it enters the networked environment.

Paranoid yet?

So when next you go to post something about your darling younglings on social media, I hope you keep all this in mind and resist the urge to post those cutsey birthday pictures or baby's first bath or your daughter's first kiss.

Yeah, maybe keep those memories close(r) to the vest.

But I Didn't Do Anything Wrong!

noreply@blogger.com (Mr. Librarian) — Mon, 25 May 2026 07:00:00 +0000

The more I interact with Internet-land, I am becoming desensitized to the complaints people have after they did something they shouldn't have done.

For instance, tugging on Superman's cape. I mean really, the guy is fighting crime and you tug on his cape? Or how about pulling the mask off that old Lone Ranger. Dang but it should just be common sense of things you just don't do but then there are people out in people land that don't have much common sense.

Funny how people do things and then they start to scream and complain that they didn't do anything when they get arrested for doing the things they did but don't think they should be arrested for doing them.

What things, you ask?

1) How about Trespass?

Trespass is entering or remaining on someone else’s property without permission. It can happen either by going onto private property you’re not allowed to enter, or by refusing to leave after being asked by the owner or an authorized person. Even without posted signs, staying after notice is usually enough to make it illegal.

People who are guilty of trespass might say:

“It’s not posted!”
“I didn’t see a sign!”
"Why do I have to leave?"

The problem is that (and what I see time and again is) if you’ve been told to leave (by owner, staff, or police) and don’t, that alone can be enough for an arrest—even without signs.

In People v. Brown, 236 Cal.App.2d Supp. 915 (App. Dep’t Super. Ct. 1965), defendants entered a Bank of America branch (a private business open to the public) and engaged in disruptive conduct inside the premises and were told to leave. They didn't leave and were arrested and charged under California Penal Code §602 (criminal trespass statutes).

The appellate court noted that a person can be guilty of trespass when they enter property lawfully or unlawfully, AND act in a way that violates the statutory trespass provisions (including interference with business or remaining without consent).

So, if you enter a property that is not your own and fool around such that the owner tells you to leave AND YOU DON'T LEAVE, you can/will most likely be arrested.

Even if you don't think you did anything wrong, if you are told to leave a property and you don't, the time to fight the trespass is NOT when you are trespassing or when you are being handcuffed. The time to fight a trespass is in court - at your leisure.

If you choose to scream and fight at the time of the trespass, you're going to be arrested (and probably charged with obstruction and resisting arrest) even if you don't understand why.

That's just the way this goes.

2) How about Driving Under the Influence (DUI)?

Driving Under the Influence (DUI) is operating a vehicle while your ability to drive safely is impaired by alcohol, drugs (legal or illegal), or a combination of substances. Impairment can include slowed reaction time, poor judgment, reduced coordination, drowsiness, or altered perception—even if you don’t feel “drunk.”

What we're talking about here are pretty straight forward cases like Doyle v. State, 2002 OK CR 29, 47 P.3d 530 (Okla. Crim. App. 2002) where the defendant (Doyle) was stopped by law enforcement in Oklahoma after officers observed signs of intoxication (driving behavior + field indicators). Consequently, defendant was arrested and charged with Driving Under the Influence (DUI) under Oklahoma law and was convicted in district court.

On appeal, the court held that a DUI conviction may be sustained based on officer observations and circumstantial evidence of impairment, even without any legal deficiency in the arrest or proof.

DUI laws can be triggered either by observed impairment or by exceeding legal limits (in Utah, a 0.05% BAC), and they also apply to impairment from things like prescription medications, marijuana, or other substances that affect driving ability.

People are often genuinely surprised during a DUI stop because their mental model of “impaired” doesn’t match how the law defines it. What many people don't realize is that DUI isn’t just about the consumption of alcohol. Prescription meds (like painkillers or anti-anxiety drugs), sleep aids, or marijuana can all impair driving—even if legally obtained.

People often think:

“I feel fine”
“I only had a couple drinks”

But laws are based on blood alcohol content, not how you feel. You can be legally impaired well before you feel drunk. Many assume an hour or two “sobers them up,” but BAC often stays elevated longer than people think. The time to fight a DUI is not when you are being handcuffed. If you fight the police when you are being handcuffed, you will most certainly be arrested and things will not go well with you.

Trust me on this one.

3) How about Domestic Violence (arguments that turn physical)?

Domestic violence is any act (or threat) of violence, force, or intimidation between people in a close relationship—such as spouses, partners, family members, or people living together.

Domestic violence doesn’t require serious injury; any unwanted physical contact, attempt to cause harm, or behavior that puts the other person in fear can qualify. Laws in places like Utah treat these situations seriously, and officers often make an arrest based on probable cause even if the people involved minimize what happened.

What we're looking at here is cases like State v. Harden, 26 So. 3d 726 (Fla. 2d DCA 2010) where the defendant (Harden) and the victim were involved in a domestic relationship. Seems an argument escalated into physical confrontation.

The victim testified that the defendant pushed or struck them during the dispute and law enforcement responded. Harden was subsequently charged with domestic battery and a trial court resolved the case with a conviction for battery.

The Florida Second District Court of Appeal noted that that when credible evidence shows intentional unwanted physical contact during a domestic argument, a domestic battery conviction will be upheld.

What trips people up is that what they're doing doesn’t look like what they imagine “domestic violence” to be:

“I just pushed them out of the way”. A shove during an argument—especially if it’s unwanted—can be enough. It doesn’t have to leave a mark.
Grabbing, blocking, or restraining. Holding someone’s arm, pinning them, or standing in a doorway to stop them from leaving can be considered force or intimidation.
Throwing objects (even if you miss). Tossing a phone, plate, or anything in anger can qualify because it creates fear of harm.
Taking or breaking a phone during an argument. Grabbing a phone to stop someone from calling for help can be treated as both domestic violence and interference with communication.
“Mutual” arguments that turn physical. Even if both people are yelling—or both claim fault—police may still arrest one party based on who appears to be the primary aggressor.
Threats that feel “in the heat of the moment”. Statements that imply harm (“you’ll regret this,” “I’m going to hurt you”) can count if they put the other person in reasonable fear.
Minimal or no visible injury. You don’t need bruises or cuts. The legal threshold is often the act or the fear it creates, not the severity of injury.

The common thread is that the law focuses on unwanted force or fear within a relationship, not whether it seemed minor, mutual, or “just part of an argument” at the time.

People say:

“It was just an argument”
“I barely touched them”

The issue isn't what you think or do - it's what the other person thinks or feels. So, maybe put yourself in the other persons shoes for a bit and think what they're going through when you're thinking of pushing them through that plate glass window.

Now, if you're are still unsure what you did to get the police's attention, don't fight it when the handcuffs are being installed on your wrists because if you do resist, you will be arrested and charnged for resisting arrest (at least) nothing will go your way from there on out.

Again, you'll just have to trust me on this.

4) How about Shoplifting (including “accidental”)?

Shoplifting is taking merchandise from a store without paying for it, or intentionally leaving the premises with unpaid items. It also includes actions like concealing items, altering price tags, or bypassing payment systems.

The key difference between intentional and accidental shoplifting is intent: intentional shoplifting involves knowingly trying to deprive the store of payment, while accidental shoplifting happens when someone unintentionally leaves without paying (for example, forgetting an item in a cart or bag).

However, even if it’s accidental, stores and law enforcement may still treat it as theft based on what actually occurred, which is why misunderstandings can still lead to legal trouble.

What we're looking at are cases like State v. Lillard, 122 Wn. App. 422, 93 P.3d 729 (Wash. Ct. App. 2004). Here, the defendant (Lillard), was engaging in conduct leading to a theft charge under Washington’s theft statute (RCW 9A.56.030 / related provisions). The case involved taking property without permission and intent to deprive the owner and defendant was convicted at trial. Lillard later appealed his conviction arguing the evidence was insufficient to support the theft conviction.

The Washington Court of Appeals held that the evidence was sufficient to support the theft conviction, that intent to deprive can be inferred from:

possession of stolen property
surrounding circumstances of acquisition
conduct inconsistent with lawful ownership

The court also noted that circumstantial evidence is sufficient to prove intent in theft cases, and appellate courts will not reweigh credibility or substitute their judgment for the jury’s.

Typical responses from people after they are caught might include:

“I forgot it was in my cart”
“I was going to pay for it”

The problem is that stores and police don’t have to prove long-term intent—the mere asportation or leaving the store without paying is usually enough.

Screaming "I WANT TO PAY" or "THIS IS ALL MY STUFF" is not going to help your cause. If you are being arrested for shoplifting, anything you do when/after handcuffs are put on your wrists will only count against you. Bide your time and let the police do their thing because screaming and struggling will only go against you.

5) How about Unauthorized Recording / Privacy Violations.

Unauthorized recording / privacy violations involve capturing audio, video, or images of someone without legal permission in a context where they have a reasonable expectation of privacy.

This can include recording conversations without required consent or filming people in private spaces like homes, bathrooms, or locker rooms. Laws vary by state, but the core idea is protecting people from being recorded when they reasonably expect not to be.

What we're talking about are cases like State v. Kaakimaka, SCWC-22-0000690 (Haw. 2025) where the defendant used a hidden cellphone camera to record a minor showering inside a residence. The device was placed outside a bathroom window aimed into a “private place.” Defendant was subsequently arrested and charged with Violation of Privacy in the First Degree under HRS § 711-1110.9.

The Hawaii Supreme Court affirmed the defendant's conviction and explained that a “private place” includes areas where a person has a reasonable expectation of privacy (like a bathroom inside a home) and noted that secretly recording someone in a private place (like a bathroom) satisfies Hawaii’s criminal “violation of privacy” statute even if the recorder is outside the structure.

Where people get tripped up is the context:

Private vs. public spaces. Recording in public (streets, parks) is often legal, but filming inside someone’s home, a restroom, or even certain areas of a business can cross the line.
Audio recording (consent laws). Some states allow “one-party consent” (only one person in the conversation must know), while others require all parties to consent. Secretly recording a conversation can be illegal depending on location.
“It’s my phone, I can record anything.” Ownership of the device doesn’t override privacy laws—where and how you record matters more.
Sensitive situations. Recording people in vulnerable or intimate situations (changing clothes, medical settings, etc.) is almost always illegal, even if no harm was intended.
Posting or sharing recordings. Even if recording itself was legal, sharing it (especially if it’s private or misleading) can create additional legal issues.

Typical beliefs that trip people up:

“I can record anything in public”
“It’s my phone”

Filming in certain places (bathrooms, private property, or even audio recording without consent in some states) can be illegal.

What is imporant for people to understand is that legality hinges on expectation of privacy and consent, not just whether the recording was technically possible.

I suspect the bottom line to all this "but I didn't do anything wrong" business is to understand that just because YOU don't think you did anything wrong doesn't mean you didn't actually do anything wrong.

Well, that and struggling with the police when you're being handcuffed almost ALWAYS ends with your face in the pavement and two cops on your back.

Just keep all this in mind when next you are being handcuffed and save the drama for the theater.

I'm just sayin.

Looks Like He's Having a REALLY Bad Hair Day

noreply@blogger.com (Mr. Librarian) — Mon, 18 May 2026 07:00:00 +0000

I don't know what it is but lately there have been a spat of videos online of people who are just freaking the freak out!

If I didn't know better, I'd say the guys who manufactured COVID are at it again and have manugactured a crazy driver gene geared to cause crazy drivers to just flip out at the slightest things.

Take the guy whose video I was watching the other day.

Seems the driver of a Mercedes Benz slammed on his breaks for whatever reason in front of a Truck, got out of his car with gun in hand, walks back to Truck driver and starts treatening Truck and his wife with gun in hand - all the while you can hear Truck driver saying to wife, "Should I shoot him?!"

Now, that's a short version and Benz got arrested for a number of crimes not the least of which would be armed robbery and assault with a deadly weapon.

The bigger question is would Truck driver be justified in defending himself (and his wife) had he shot the Benz driver?

In most states, a person may use deadly force if they reasonably believe it is necessary to prevent:

Imminent death, or
Imminent serious bodily injury, or
In some states, certain forcible felonies (armed robbery, aggravated assault, carjacking, etc.).

The key words are:

Imminent (happening right now)
Reasonable belief (what an ordinary person in that position would believe)

As it is applied under this set of facts, imminent threat exists where a person:

Exits a vehicle
Approaches another occupied vehicle
Is armed with a firearm (or, I suspect, anthing that can be used as a weapon)
Points or waves that firearm
Reaches inside the vehicle
Attempts to seize property
Demands occupants exit the vehicle

That is typically treated as an armed felony in progress (e.g., aggravated assault, attempted armed robbery, carjacking).

A gun present + aggressive advancement + reaching into an occupied vehicle is generally strong evidence of an imminent deadly threat.

While there might be an imminent threat present, is the Truck driver still within his rights to defend himself (and his wife)?

Under general U.S. self-defense law deadly force is justified if:

You reasonably believe
You face imminent death or serious bodily harm
You are not the initial aggressor

This standard was articulated in cases like Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989) which explains that reasonableness is judged from the perspective of a reasonable person under the circumstances — not with hindsight.

Now, here's where things get dicey. See, there are two schools of thought: Retreat or No Retreat.

The duty to retreat is a legal rule that says: Before using deadly force in self-defense, a person must retreat if they can do so safely.

Key elements of this Duty to Retreat:

It only applies to deadly force.
It only applies if retreat can be done with complete safety.
It does not require reckless escape.
It does not apply if you are inside your own home (under traditional castle doctrine).

Historically, this rule was developed in 19th-century American common law.

A well-known articulation appears in Brown v. United States, 256 U.S. 335 (1921) in which Justice Holmes wrote: “Detached reflection cannot be demanded in the presence of an uplifted knife.” That case softened strict retreat requirements and emphasized reasonableness.

Currently, the following states adhere to a Duty to Retreat:

Connecticut
Delaware
Hawaii
Maine
Maryland (common law)
Massachusetts
Minnesota
Nebraska
New Hampshire
New Jersey
New York
North Dakota (modified; limited duty)
Rhode Island
Vermont (common law duty)
Wisconsin

On the other hand are those states that adhere to the Castle Doctrine (or no duty to retreat aka "stand your ground").

Under Castle Doctrine laws:

There is typically no duty to retreat.
An armed unlawful intrusion into an occupied space often creates a legal presumption that the occupant reasonably feared death or serious injury.

For example:

Utah has statutory provisions allowing deadly force when a person reasonably believes force is necessary to prevent death or serious bodily injury, and it includes occupied vehicles in its habitation protections.

Following are the states that follow the Castle (or stand your ground) doctrine:

Alabama
Alaska
Arizona
Arkansas
Florida
Georgia
Idaho
Indiana
Kansas
Kentucky
Louisiana
Mississippi
Missouri
Montana
Nevada
New Mexico
North Carolina
Ohio
Oklahoma
South Carolina
South Dakota
Tennessee
Texas
Utah
Virginia
Washington
West Virginia
Wyoming

and, as it turns out, many of these states extend the Castle Doctrine to occupied vehicles.

So, back to our scenario, would shooting be legally justified?

Potentially yes — if the truck driver:

Reasonably believed the BMW driver was about to shoot,
Or believed he or his wife were about to be forcibly removed or harmed,
And the threat was immediate.

A prosecutor in such a case would analyze:

Was the gun pointed directly?
Was the Benz driver within shooting distance?
Was he reaching into the cab?
Did he attempt to disarm or drag someone out?
Could the truck driver safely retreat (if duty-to-retreat state)?
Was deadly force proportional at that moment?

So, the fact that most every question could be answered in the affirmative, I'd think Truck driver is well within his rights to protect himself and his wife.

HOWEVER, and playing devil's advocate here, what could make a self defense shooting be illegal?

Deadly force could become unlawful if:

The Benz driver was retreating.
The gun was not pointed at truck driver or his wife AND threat had ended.
The truck driver fired after the immediate danger passed.
The truck driver escalated unnecessarily.

Timing matters enormously. Self-defense hinges on immediacy.

So, the realistic legal outcome of this situation (because every situation has a whole different set of facts), in many jurisdictions, a grand jury would likely consider this a strong self-defense case — especially if:

The incident was recorded.
Benz driver clearly brandished the gun.
Benz driver initiated the confrontation.
Benz driver physically invaded the truck.

But remember: even clearly justified self-defense shootings are often investigated, and arrest is possible pending review.

So, short answer, under typical U.S. self-defense law:

Yes, the truck driver could legally be justified in using deadly force in this scenario — if he reasonably believed he or his wife were in imminent danger of death or serious bodily injury.

The presence of:

A firearm
Aggressive approach
Attempted intrusion into an occupied vehicle
Demands to exit

…all strongly support that claim.

Bottom line, if you're gonna go all crazy and slam on your breaks and scream obscenities at all other drivers, leave your gun in your car because you never know who else it armed and ready to defend themselves.

The FDA, Again?!?

noreply@blogger.com (Mr. Librarian) — Mon, 11 May 2026 06:30:00 +0000

You know, it seems just yesterday I was bagging on the FDA.

In today's blog post, I'm complaining about drugs and why is it the FDA isn't doing a better job of regulating Big Pharma.

In fact, and did you know, that there are ONLY TWO countries that allow pharmaceutical companies to advertise to the public? The United States and New Zealand.

That's it.

Did you also know that under the Federal Food, Drug, and Cosmetic Act (FDCA), the FDA regulates prescription drug ads.

That's right. Pursuant to FDA rules, companies must:

Present a “fair balance” of risks and benefits.
Not omit important safety information.
Ensure claims are truthful and not misleading.

Soooooo, what happens when a pharmaceutical company doesn't present a fair balance of risks and benefit OR omits important safety information OR ensures claims are truthful and not misleading?

Well, they get fined or get sent a really nasty letter.

A letter? You're kidding right?!

Actually, no.

Officially, if a company misleads the public (e.g., downplays side effects), the FDA can issue:

A scary warning letter or Untitled Letters (formal notices to stop certain ads).
Seizure or injunctions (rare).
Referral to the Department of Justice (DOJ) for civil or criminal prosecution.

But, you say, the FDA doesn't really send out letters when there is a clear violation by a BILLIONS in profit each year MULTINATIONAL corporation?

Say it isn't so, Joe!

1. Celgene – Revlimid (2015, Untitled Letter)

Issue: Promotional materials overstated effectiveness in treating multiple myeloma and downplayed risks.
FDA Action: Issued an untitled letter directing Celgene to correct the materials.
Criticism: No fine or sanction, even though Revlimid was a multi-billion-dollar drug.

2. Amgen – Neulasta (2010, Warning Letter)

Issue: TV ad minimized serious risks (e.g., spleen rupture, acute respiratory distress) and overstated benefits for chemotherapy patients.
FDA Action: Sent a warning letter. The ad was pulled, but no financial penalties were imposed.

3. Novartis – Tasigna (2013, Untitled Letter)

Issue: Website and YouTube videos exaggerated the cancer drug’s effectiveness while minimizing life-threatening side effects.
FDA Action: Issued an untitled letter requiring corrections, but no fines.

4. Otsuka – Rexulti (2016, Warning Letter)

Issue: Sales reps made false claims to physicians, suggesting Rexulti was safer and more effective than proven.
FDA Action: Sent a warning letter. Again, no penalties beyond compliance.

5. AstraZeneca – Seroquel XR (2009, Warning Letter)

Issue: Print ad overstated effectiveness for generalized anxiety disorder and omitted major safety warnings (including metabolic risks).
FDA Action: Warning letter only — no fines.

OK, OK, so they send out letters. But no fines/money? There's gotta be instances where companies who violate the law get fined, right?!?

Well, yes - fines are levied. The problem is when the company makes BILLIONS in profit each year, any fine is basically a tickle. For example:

GlaxoSmithKline (GSK) – Fined $3 billion (2012)

Drugs: Paxil, Wellbutrin, Avandia
Violation: Misbranding, illegal promotion, and failure to report Avandia’s cardiovascular risks.
Profit in 2012: $7.1–7.5 billion USD

Pfizer – Fined $2.3 billion (2009)

Drug: Bextra (and others)
Violation: Off-label promotion, false marketing, and kickbacks.
Profit in 2009: About $8.6 billion USD

Johnson & Johnson – $2.2 billion (2013)

Drug: Risperdal (antipsychotic)
Violation: Misbranding and hiding risks, especially promotion to elderly patients despite stroke risk.
Profit in 2013: $13.8 billion USD

Abbott Laboratories – $1.5 billion (2012)

Drug: Depakote
Violation: Promoting for unapproved uses (e.g., dementia, schizophrenia).
Profit in 2012: $6.0 billion USD

Eli Lilly – $1.4 billion (2009)

Drug: Zyprexa (antipsychotic)
Violation: Off-label promotion (especially to children and elderly) while downplaying diabetes risks.
Profit in 2009: $4.33 billion USD

Merck – $950 million (2011)

Drug: Vioxx (painkiller)
Violation: Misbranding and failing to disclose cardiovascular risks.
Profit in 2011: $6.27 billion USD

Amgen – $762 million (2012)

Drug: Aranesp (anemia drug)
Violation: Misbranding, off-label promotion, false claims to Medicare.
Profit in 2012: $4.3 billion USD

Allergan – $600 million (2010)

Drug: Botox
Violation: Promoting for unapproved uses (headaches, juvenile cerebral palsy, pain).
Profit in 2010: $0.28 billion on revenue of $4.8 billion USD

Schering-Plough/Merck – $435 million (2006)

Drug: Temodar, Intron A, others
Violation: Off-label promotion, false claims.
Profit in 2006: $1.6 billion USD

Purdue Pharma – $634.5 million (2007)

Drug: OxyContin
Violation: Misbranding, falsely claiming OxyContin was less addictive and safer than other opioids.
Total Revenue in 2007: $2.8 billion USD

What does all this indicate? Simply, that money is no option for some companies. Even though Purdue Pharma got hit with a $634.5 million fine, it was still not enough to sink the company because there is so much money in drugs.

So, why doesn't the FDA hit Pharma companies harder? Well, up to now, the Feds were in bed with Big Pharma.

The most direct evidence of bribery occurred in the late 1980s, where an industry whistleblower uncovered a major scandal involving FDA officials.

What happened: Several FDA employees in the generic drugs division were found to have accepted bribes and illegal gratuities from generic drug companies. In exchange, officials sped up drug approvals or provided inside information.

The outcome: The scandal led to criminal convictions and prompted the FDA to implement new policies to detect fraudulent data submissions and address bribery

Outside of direct bribery, critics point to other structural issues that can create a "cozy relationship" between the FDA and the pharmaceutical industry.

User fees: Since 1992, the FDA's drug division has been partially funded by "user fees" collected from pharmaceutical companies. This system raises concerns about a potential conflict of interest, as the FDA becomes dependent on the industry it regulates.
The "revolving door": It is a common practice for senior FDA officials and drug reviewers to leave the agency and take high-paying jobs at the pharmaceutical companies they once regulated.
- Potential concerns: This practice raises concerns that former officials could use their inside knowledge and relationships to benefit their new employers.
- Arguments for the practice: Supporters argue that the deep knowledge of former FDA employees can help companies navigate the complex approval process more efficiently.

The pharmaceutical industry also has a documented history of paying illegal kickbacks and bribes to healthcare providers, but these cases typically involve influencing doctors' prescribing habits rather than directly corrupting FDA officials. For instance, in 2016, pharmaceutical executives were charged with a racketeering scheme involving paying kickbacks to doctors to promote an addictive opioid.

So, I'm wondering whether any of this is going to stop with the new administration? Obama didn't care about the kickbacks. Biden didn't care, either.

Will Trump, et al. care?

Time will tell.

In the meantime, what can regular folks do against big pharma and FDA corruption?

Well, we can advocate for legislative reforms, such as increased transparency in funding for researchers and advocacy groups, and reforms to the FDA's fee system that increases industry influence.

We can supporting independent journalism that investigates misconduct, reporting potential conflicts of interest.

We can join or support non-profit organizations that work to promote patient safety and advocate for stricter regulations.

It's not a lot but at least it's something and sometimes, it's the little things that bring down the mountain.

Word of the Month for May 2026: Grievance Mentality v. Victim Mentality

noreply@blogger.com (Mr. Librarian) — Mon, 04 May 2026 07:00:00 +0000

You know, sometimes when I write these blogs, the research gets deeper and deeper - like a rabbit hole. Turns out, this one got deep REALLY fast.

So, picture it. I'm minding my own business eating my lunch at a local park when I witnessed a Guy wearing what I though was an innocuous T-shirt.

Cue Old Lady who approaches Guy and starts screeching at Guy at how offended she was with his T-shirt. You know, looking back on it, I don't think she really said anything - it was just the tone of the screech that got me. A mix of cat drowning in a burlap bag and Baba Yaga on a mid-night run.

Anyway, she really didn't like what Guy was wearing and screeched until her voice gave out....which about the time she got physical and tried to tear Guy's shirt off.

Well, I'm guessing that's what she was trying to do.

Anyway, good thing there was a cop in the area to help de-escalate things before things got too crazy.

This all brought to my mind what some of the things politicians on the left are doing or have been doing to rile up their constiuents. Specifically, playing the victim whilst complaining about what the Right side of the isle is doing (i.e. Republicans).

So, before we get too far into this, let's cook up some definitions.

As you'll note, we have two words/concepts that we're dealing with this month (and it's important to note the differences). Actually, there are 4 terms here which I'll define in sequence and show their importance as it relates to both the political and judicial environments in which we now live.

A GRIEVANCE is a specific complaint about something perceived as unfair, harmful, or unjust. A grievance mentality is a persistent way of seeing oneself or one’s group as having been treated unfairly and staying focused on that injustice, often with a mix of resentment, moral outrage, and a desire for payback rather than resolution. It becomes a stable lens: new events are interpreted as further proof that “they are against me/us,” and positive or neutral information is discounted.

Key traits of a grievance mentality:

Situational and contextual (“X happened that was unfair”)
Can motivate action, advocacy, or problem-solving
Does not define the person’s identity
Can be verified or addressed

Example:

A person believes a company denied them a promotion unfairly and formally files a complaint or seeks mediation.

In contrast, a VICTIM is a person who suffers harm, loss, or injury as a result of someone else’s actions, negligence, or circumstances beyond their control (whether actual or presumed). Where a victim is someone who has genuinely suffered harm, a victim mentality is a psychological pattern in which a person perceives themselves as perpetually wronged, whether or not actual harm exists, and interprets all challenges as personal injury.

Victim claims are persuasive because they tap into automatic emotional, moral, and group-based processes in the brain that evolved to respond quickly to threats and unfairness. They also exploit common persuasion dynamics: trust in the speaker, vivid emotional stories, and repetition.

Key traits of a victim mentality:

Persistent external blame: Others or systems are always at fault
Powerlessness: Belief that one cannot meaningfully influence outcomes
Identity fusion: Being a victim becomes a core part of self-concept
Resistance to solutions: Any advice, compromise, or effort is dismissed
Moral leverage: Suffering is used to claim authority or righteousness

Example:

That same employee now believes all promotions are rigged, everyone is out to get them, and any attempt to fix things is hopeless. They may never try again, instead framing all setbacks as proof of universal injustice.

In politics, these mentalities shows up as:

Constant outrage over opposition actions, even minor ones.
Treating all criticism as illegitimate or harmful.
Framing your party, ideology, or movement as systematically under attack, with little acknowledgment of agency or responsibility.

A grievance mentality is built around three psychological core beliefs which are narrower, more situation than a victim mentality but still reality-anchored. The three core beliefs of a grievance mentality are:

Something specific happened that was unfair or wrong.
Responsibility for this wrong is limited and identifiable.
Redress should be proportional and rule-based.

A grievance mentality still allows evidence to matter, intent to matter, proportionality to matter, and self-reflection to occur.

It says:

“This was wrong, and it should be addressed.”

—not—

“I am wronged, therefore I am right about everything.”

From a legal perspective, a grievance mentality says: “That law unfairly limits voting in my district — let’s challenge it through courts or advocacy.”

A victim mentality, on the other hand, causes people to interpret the world through a lens of permanent threat and moral innocence, which turns neutral actions into attacks, disagreement into evil, and ultimately makes aggression feel like justified self-defense rather than wrongdoing.

A victim mentality isn’t just “feeling wronged,” it’s a stable identity built around three beliefs:

I am fundamentally innocent / morally superior.
Others are agents of harm (even when neutral).
My suffering justifies my reactions.

Once those beliefs lock in, the person’s brain stops asking “What is actually happening?” and starts asking “How is this happening to me?”

Essentially, the person's perception shifts to themselves as the victim for everything around them allowing them to then blame everyone (else) and not take any blame themselves for anything they do.

From a legal perspective, a victim mentality says: “The system is rigged, nothing we do matters, and anyone who disagrees with us is part of the oppression.

Looking back at Baba Yaga in the park, what are some behaviors that were exhibited indicating a victim mentality?

As I was looking all this, I got to wonder at what point does a grievance twist into a victim mentality?

You know, I can't help but feel that Maxine Waters is partly responsible for people like this. Back in 2018, she actually encouraged people to out and out attack persons who did not believe as they do/did saying, "If you see anybody in a restaurant, in a department store, at a gasoline station, you get out and you create a crowd. And you push back on them. And you tell them they're not welcome anymore, anywhere...protest and harass them..."

Really? Harass people into doing what you want? What a boring world it would be if everyone did and thought the same thing.

The thing is, once someone sees themselves as a victim in principle, they feel entitled to break norms, justified in punishing others, and are immune from moral scrutiny.

In psychology, this is called moral licensing. Essentially, what a person is saying in such a situation is:

“Because I am harmed (whether or not they actually were), I am allowed to harm.”

That’s how aggression becomes “self-defense,” harassment becomes “accountability,” and violence becomes “justice.”

A victim mentality can manifest in public by treating symbolic opposition as real harm. The pattern is recognizable:

Perceived offense → personal moral obligation → confrontation or shaming → justification through self/identity as victim.

You know, I seem to recall a few times over the last couple of years where politicians have lashed out pushing a victim rhetoric, to wit:

Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009).

A West Virginia Supreme Court justice refused to recuse himself from a case involving a company whose CEO had spent millions supporting his election. The Supreme Court of the United States held that due process required recusal because of a serious risk of bias.

While the judge's actions wasn’t out and out called a “victim mentality,” it shows how perceived alignment or favoritism can undermine judicial neutrality.

Alexandria Ocasio-Cortez on the Jan. 6 Capitol attack

Quote/Context:
After the January 6, 2021 attack on the U.S. Capitol, Rep. Alexandria Ocasio-Cortez described fearing for her life and equated calls to “move on” with minimizing harm. She said those urging others to forget the event were using “the same tactics of abusers,” and connected her emotional response to her experience as a survivor of abuse.

Interpretation:
Critics have interpreted this as invoking personal victimhood and psychological harm to frame political opponents’ disagreement or pushback as abusive — a victim-framed narrative rather than simply political disagreement.

Democrats in Congress blaming Republicans for political violence

Quote/Context:
After the assassination of conservative activist Charlie Kirk in 2025, Rep. Seth Moulton (D-MA) accused Republicans and right-wing rhetoric of being chiefly responsible for politically motivated violence in America: “Let’s be serious… extremist murders 76% are from right wing extremists.” He emphasized that while left-wing extremists are also condemned, the responsibility lies primarily with the other side.

Interpretation:
Here Democratic criticism shifts from condemning violence to blaming the opposing party’s rhetoric for harm to themselves and others. Some view this as presenting themselves and their allies as victims of polarizing rhetoric rather than focusing solely on broader solutions.

House Democrats calling GOP investigations politically motivated

Quote/Context:
Democrats on the House Oversight Committee labeled a Republican-led investigation into D.C. policing as a “political stunt” and “biased,” rejecting the legitimacy of the probe and framing the effort as aimed improperly at local leaders rather than based on evidence.

Interpretation:
Framing the investigation as biased and harmful can, for critics, signal a narrative of being targeted and unjustly treated — even when the investigative topic itself is not inherently about personal harm.

AOC’s emotional recounting of Capitol events as trauma

Quote/Context:
In televised or social media posts, Ocasio-Cortez described the Capitol attack as traumatizing and recounted saying “I woke up and I thought I was dying” while sheltering during the siege. She has invoked trauma language when discussing the event and Republicans’ role.

Interpretation:
While describing trauma is valid, critics have at times argued that linking it rhetorically to political opposition blurs personal threat experiences with political messaging — potentially encouraging narratives that the entire political context is an ongoing attack on them.

The problem with all this mud-slinging and victim mentalizing is that it always spills over into real life, encouraging people to act out and become victims themselves. Dang but the courts are full of people who took what their favorite politicians have said and chose to become political victims.

Cody Balmer — attempted arson/murder of a governor’s residence (Pennsylvania)

What happened:
In April 2025, Cody Balmer pleaded guilty to attempting to murder Pennsylvania Governor Josh Shapiro by throwing gasoline‑filled bottles at the governor’s mansion while Shapiro and his family were inside.

Prosecutors described the attack as politically motivated, linked to Balmer’s grievances around political issues, including the war in Gaza and his hatred for Shapiro’s policies. Balmer was sentenced to 25–50 years in prison on multiple charges, including terrorism, arson, reckless endangerment, and aggravated assault.

Why it’s relevant:
Balmer believed his ideological/political grievances justified an attempt on a political opponent’s life — and the court convicted him accordingly.

2025 Minnesota Legislators Shooting (Vance Luther Boelter)

What happened:
In June 2025, Vance Luther Boelter was arrested and charged after a shooting attack that killed former Minnesota House Speaker Melissa Hortman and her husband, and severely wounded others. Investigators found he had a hit list of ~70 political figures and expressed hatred against Democratic lawmakers, with motivation tied to political ideology.

Why it’s relevant:
This is a clear case where political grievances fueled targeted violence against public officials. It was widely condemned and charged as politically motivated murder.

Riley Jane English — Arrest on Mall with Weapons

What happened:
In January 2025, Riley Jane English, 24, was arrested on the National Mall carrying a folding knife and Molotov cocktails with stated intent to kill high‑level U.S. officials she described with political epithets (e.g., calling one a “Nazi”). Federal authorities arrested her before any attack occurred.

Why it’s relevant:
Although she hadn’t harmed anyone yet, English explicitly connected political beliefs and threats of violence — illustrating how grievance and perceived ideology can lead people to arm themselves for political reasons.

2025 Texas ICE Facility Shooting (Antifa‑linked suspects)

What happened:
In the summer of 2025, authorities charged 11 people after a violent attack on a U.S. Immigration and Customs Enforcement (ICE) detention facility in Alvarado, Texas, involving gunfire and other violent conduct. Prosecutors described the group as tied to left‑wing activist circles and intent on opposing immigration enforcement by force.

Why it’s relevant:
Participants claimed political beliefs (opposition to immigration policy and law enforcement) motivated their actions. This case became controversial over how much political grievance justified the violence in prosecutors’ eyes.

Solomon Peña’s Shooting Campaign (New Mexico)

What happened:
In 2022–23, Solomon Peña, a failed political candidate in New Mexico, allegedly retaliated after losing election by recruiting others to fire shots into the homes of Democratic officials. No injuries were reported, but the attacks were violent and politically motivated.

Why it’s relevant:
This shows a progression from grievance (losing an election) to violent acts directed at specific political opponents.

Killings of Aaron Danielson and Michael Reinoehl (Portland, 2020)

What happened:
During the protests in Portland in 2020, Michael Reinoehl, a far‑left activist, shot and killed Aaron Danielson, a supporter of a right‑wing group, claiming self‑defense. Reinoehl told media he acted because he believed Danielson posed a threat.

Why it’s relevant:
Although self‑defense was legally contentious, the motive was rooted in believing the political environment made violence necessary — a fusion of grievance and worldview that led to lethal harm.

So, what do these cases all have in common? Across these examples, the pattern is:

Perceived grievance or threat (political, social, ideological)
Internal belief that traditional channels are inadequate
Action taken — often violent — supposedly to counter that perceived threat
Legal consequences where courts treat violence as a crime regardless of motive

What is important to note is that in most legal systems (including the United States), perceived political grievances do not legally justify violence. The law generally holds that a subjective belief you are a victim of political circumstances does not provide moral or legal license to harm others.

What this leads to (or, at least leads me to) is how important it is for politicians to curb their rhetoric. Yeah, yeah, I realize the reason politicians spout what the spout is to get people worked up. However, and I suspect the bottom line to all this is that people should ignore 99% of what media and politicians say and take the other 1% with a grain of salt.

If that doesn't work, then maybe go to a park and yell at the squirrels. They don't care what you say and they're probably laughing at us, anyway.

The Constitution under Attack

noreply@blogger.com (Mr. Librarian) — Mon, 27 Apr 2026 07:00:00 +0000

I gotta wonder what is going through the minds of the SCOTUS justices sometimes. I mean, Trump, Trump, Trump aside, it's amazing how they find the time to muck up the Constitution so much.

What? Muck up the Constitution?! What'd the SCOTUS do this time?!?

Back in 2021, police in Anaconda, Montana received a 911 call from William Trevor Case’s ex-girlfriend saying he was suicidal and might try “suicide by cop.”

Important to note: His EX girlfriend (whom I am sure only had his best interests in mind) called the police. Thing is, I've had ex-whatevers and they NEVER have my best interest in mind. Heck, tell me I'm wrong but are there any EX's out in people-land who aren't out to screw you the first chance they get?!?

Anyway, and moving on, officers arrived at Case's residence and start looking in windows but saw no immediate emergencies. Waiting another 40 minutes outside the house (during which time they called their supervisor to assess what, if any, risk they might have if they were to break down the door under the pretext of an emergency discussing whether or if Case might ambush them.

NOTE: they were seeking advice as to what risk/emergency THEY might have if they broke down the door - not whether there was any risk to Case. Yeah, so very altruistic they were.

Note also that in all that 40 minutes, they never tried to get a warrant to break down the door (which they could have) nor did they have probabe cause (because of the presumed emergency). Police eventually broke down the front door with rifles in hand and ballistic shields.

Confronting the defendant, Case emerged holding an object (believed to be a gun) and an officer shot him. Case was later convicted of assaulting an officer and challenged the admissibility of evidence, arguing the entry violated the Fourth Amendment.

So, let's recap:

Police are called saying defendant is going to shoot himself (can you say swatting?).
Police wait 40 minutes before entering.
Without probable cause (as is generally necessary under the 4th Amendment), police enter without a warrant (you know, because of emergency),
Police confront and shoot the defendant and arrest they guy they're supposed to be helping for assaulting a police officer.

Yeah, sounds like something police would do.

Anyway, Case loses at the trial and appellate levels. The SCOTUS also rules in favor of the State (of Montana) in Case v. Montana, No. 24-624. In their holding (written by Justice Kagan), the court held that police can enter a home wihout a warrant to render emergency aid if they have

"an objectively reasonable basis for believing someone inside is seriously inujured or facing serious harm."

The Court reasoned that probable cause is rooted in criminal investigations and ill-suited to non-investigatory welfare checks (which is total BS!). Because the officers reasonably believed Case might have shot himself or was in immediate danger, their entry was constitutionally valid.

A few problems stick out for me.

Before Case, the generally understood standard for police entering a person's home was that warrantless entry into a home usually required:

Probable cause
Exigent circumstances

After Case, in cases of "emergency aid" or "welfare checks," Police only need:

“Objectively reasonable belief” that someone is seriously injured or in danger. This is a significantly lower threshold than probable cause. Consequently, civil liberties groups argue the decision:

blurs the line between exigent circumstances and welfare checks
makes home entry easier to justify after the fact.

A few other problems I see is that why do courts seeminly ALWAYS (that's "always" as in every bloody time) give deference to police holding out a objective standard based on how a cop perceives a situation. Turns out, I'm not the only one thinking this as many legal scholars have raised exactly the concern. Critics argue the standard:

1. Allows post-hoc justification

If officers can articulate any reasonable emergency theory later, courts often accept it.

2. Encourages pretext

Police could enter homes under a “welfare check” theory even whether or not they suspect a crime is being committed.

3. Weakens the home’s constitutional protection

The Supreme Court historically called the home the “core of the Fourth Amendment.” Lowering the standard will definately erodes that.

4. Creates escalation risks

Situations like this one can become violent precisely because police enter. However, a bigger problem where critics point to is:

Someone falsely reports a suicide threat.
Police perform a welfare check.
Officers claim they believed someone inside was in danger.
Forced entry occurs without probable cause.

Because the standard is objective reasonableness, courts will often (that's "often" as in every bloody time) defer to what officers say they perceived at the time.

How might this play out? Picture it, an ex-girl or boyfriend or a Karen of a neighbor or a political opponent decides to swat someone they don't like and calls the police filing a fake report.

Police respond, break down the door and, later, claim to have seen a gun or some other weapon and charge everyone inside the house with crimes that are trumped up to ensure the police aren't later sued and lose their precious qualified immunity.

We didn't need Case for this to happen because it happens all the time.

Wait, what?! You're saying there are instances where people had someone file a false claim against them, police break down their door and then charge them with crimes that didn't happen or were trumped up?

1. Martin v. United States, No. 24-362 (2025)

Facts:

FBI agents conducted a pre-dawn raid on the wrong house in Atlanta.
They broke the door, threw a flashbang, and handcuffed the residents, including frightening a child.
Agents later realized they had the wrong address.

2. Janetka v. Dabe, 892 F.2d 187 (2d Cir. 1989)

Facts:

Police arrested a man and charged him with resisting arrest and disorderly conduct.
At trial he was acquitted of the resisting arrest charge, the more serious charge.

Legal significance of this case is that the court allowed a malicious prosecution claim, noting that police sometimes add unsupported charges.

The court warned that allowing this practice would permit officers to add unsupported serious charges with impunity.

Why this matters: Courts recognize that officers sometimes add charges like resisting arrest or obstruction to justify an encounter.

3. Miller v. United States, 357 U.S. 301 (1958)

Facts:

Police broke into a home without properly announcing authority or purpose.
The defendant reacted by attempting to close the door.

Holding: The Supreme Court ruled the arrest unlawful because officers failed to follow required procedures before breaking in. The Court emphasized that the home has special constitutional protection.

6. Devenpeck v. Alford, 543 U.S. 146 (2004)

The Supreme Court ruled that an arrest can be lawful even if the officer cited the wrong crime, as long as probable cause existed for some crime.

Why this matters: This rule allows officers to arrest someone for one reason and later justify it with a different offense.

The underlying situation here is that courts see that civil rights litigation frequently shows a pattern:

Police enter a home (sometimes the wrong house).
Residents react (confusion, refusal, self-defense).
Officers charge them with:
- resisting arrest
- obstruction
- assault on an officer
Charges are later dismissed, but the encounter is legally justified by the arrest.

Courts often analyze these cases under: 42 U.S.C. §1983 (civil rights lawsuits), Fourth Amendment unlawful search, and false arrest / malicious prosecution.

Under Case, however, much of these protections will be tossed in favor of a tyrannical police force who are legally able to

lie to people to get them to admit to things they didn't do,
arrest someone for one reason and later justify it with a different offense.

Probably the BIGGEST problem with all this (and what the SCOTUS blew past) is that police are, by their very nature, seemingly have a tyrannical streak and will ALWAYS (that's "always" as in every bloody time) look for reasons to break the law.

You read that right - break the law. Police do it all the time (not every time but a lot of the time).

In this case, what Case does is give police another bad reason to violate the Constitution and break down doors to private residences under the pretense of an emergency or welfare check.

I mean, do you really (that's "really" as in pull your collective heads out of your collective backsides and face reality) believe police will only kick down a door when they think there is an emergency?

Hells Bells, police will use Case to kick down doors with reckless abandon if it so pleases them. You know it, I know it and the police know it.

And the reason for this is because Police are like politicians - always looking for ways to muck up the Constitution. Police will always be looking for ways to arrest and terrorize people because, otherwise, what are they going to do with themselves? Get fat on donuts?!

Well, yes, police do (seemingly) have a donut fetish but the bottom line to all this is that cases like Case only do one thing: undermine the rights of we the people.

As long as courts continue to defer to what is reasonable to the police/government in every (that's "every" as in every bloody time) situation, the rights of we the people will continue to errode.

Regardless of whether you are Republican, Independent, or democrat, it behooves everyone the necessity to stand up against these blatant attacks on the Constitution and fight against cases like Case and their ilk.