He Fought the Law…

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Two guesses who won (and the first one doesn't count).

Reader Alan Richard sends along this story about a Florida man who's going to prison for a year for refusing to clean up his yard.

Not quite as disturbing as Tommy Chong rotting in jail for nine months for selling bongs, but still a strange use of law enforcement resources.

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  1. “What you’ve done, sir, in my judgment, has torn at the moral fiber of the community, of the state.”

    whoa. junk on yard = blow against the state.

  2. He tore at the community’s moral fiber!! Lock him away for good!!!

    He broke the kind of law our pal Joe sees as being less coercive as condemnation. I suppose zoning codes are not as bad as condemnation cause at least you have the option of doing what you’re told, but coercion lies at the heart of all law, so better make sure it’s something that’s worth throwing someone in jail over!

  3. A friend of mine who lives in Hollywood, FL had her pre-teen son (age 11) taken away from her and incarcerated in a youth prison for a week and half because he was caught by police at a construction site (not charged with any vandalism, just trespassing). She could not get bail for him and was only allowed 3 supervised visits during his time in the pokey. I mean, for crap sake, he was only ELEVEN years old!!! What the hell is wrong with Floridians?

    PS The poll (on the Orlando Sentinel website) shows a large majority of Florida residents think the penalty was too lenient or just about right.

  4. Perhaps the free state project folk should have all moved to Orlando!

    🙂

  5. I also like the part where the judge says the guy caused his neighbors “psychological damage” by putting stuff in his front yard. Pretty sensitive crowd in that neighborhood.

  6. The same thing is happening in Saratoga Springs, NY:
    Link here

  7. Not quite as disturbing as Tommy Chong rotting in jail for nine months for selling bongs

    Um, no, it’s QUITE A LOT more disturbing than Tommy Chong getting nine months in jail for selling bongs. Regardless of whether or not you support the drug war, there’s no denying that the Feds have the Constitutional authority to regulate interstate commerce.

    The state’s right to throw people in jail for being slobs, on the other hand, stands on shakier ground.

    I mean, seriously, the war on drugs is stupid — but how can you say that nine months in jail for selling illegal merchandise through the mail is LESS disturbing than a year in jail for having a messy yard?

  8. Actually fyodor, I think this is outrageous. A year in prison?

    I’d have ordered him to clean up his yard by a certain date. When he didn’t, I’d have sent the DPW to clean up the mess, then put a lien on the property when he didn’t pay the bill. No need for handcuffs and jail terms.

    See, I’m not so bad.

  9. Anything bad that happens to Tommy Chong is disturbing!! 🙂

  10. So then they take his property when he refuses to pay the bill? Anyway, once you set the law in motion, it takes on a life of its own. “I didn’t mean them to enforce those good rules THAT way” doesn’t do this fellow any good!

  11. “And how about this for ‘an answer’ to the plight of the poor: remove minimum wage laws and building codes and most of the homeless would no longer be. Not perfect, but I expect it would help immensely.”

    Indeed, just look at Mexico! Who needs fussy building codes when the earthquakes will clear out the subpar buildings for you?

  12. “So then they take his property when he refuses to pay the bill?” Not unless they decided to start a tax taking. The city could just wait till he sells, then get a check at the closing.

  13. Dan,
    “Tommy Chong getting nine months in jail for selling bongs. Regardless of whether or not you support the drug war, there’s no denying that the Feds have the Constitutional authority to regulate interstate commerce.”

    The issue is: should selling bongs be illegal? I mean, really, even if drugs should be illegal, bongs!!??

    And, as an anarchist I’d challenge the Feds’ authority to regulate interstate commerce.

  14. Joe,

    Okay, if we must have an invasive and authoritarian state, I vote for you to run it. Unfortunately, the powers that be seem to be more influenced by your collectivist attitude towards property rights than your high-minded and nicey-nice approach to enforcing it!

    Lilith,

    So instead, you condemn those who can’t afford the houses you deem necessary for them to a life on the street. Some humanitarianism.

  15. The Sheriff’s department is planning on selling his things at auction. How much money will they raise? How much money would they have to collect before it undermines their contention that it is “junk”.

  16. I guess Junk Guy’s loss negates Flashing Headlight Guy’s win on the ol’ liberty scoreboard.

  17. Lilith,

    What your building codes really do is outlaw the time-honored tradition of building one’s own home to save money. In some cases, historically, one bought the lot and put up an admittedly jerry-built structure, with the idea of upgrading it as he could afford it.

    Outlawing this practice has the effect of raising the threshold of subsistence for the underclass, strengthening the imperative of selling their labor on the bosses’ terms, whatever the cost to their dignity, or compelling them to throw themselves on the mercy of a paternalistic social services bureaucracy.

    Oh, yeah–by diminishing the range of cheaper alternatives, it also gives monopoly profits to the “professional” construction industry.

    How “progressive.”

  18. From the article:

    “The state attorney asked for five years of prison time.”

    Unbelievable. We ought to track these state attorneys like we track sex offenders. “Oh christ, honey, there’s a goddam state’s attorney moving in down the street. Time to get a gun!”

    Practically speaking I have to wonder if things would be any different if the guy had built a tall fence around his property.

  19. Dan,

    According to the original understanding, the commerce power was limited to regulating the actual movement of goods across state lines. Commerce within a state was entirely a state affair. By your standard, maybe Lopez ought to be overturned.

  20. Good call joe. Not all laws are bad. His neighbors also have a right to be comfortable in their own homes, and if his junk infriges on that right they well withen bounds to seek redress. To throw him in jail though is excessive.

  21. Dan: only a corrupt understanding of the congressional authority to regulate commerce would permit that it encompasses the right to address substantive issues such as what commodities should and should not be licit. The jurisdiction of states and rights of individuals cease to exist under such an understanding; it would mean the feds could tell Nevada it may not permit legalized sex workers. I lack time to post a treatise as to what that constitutional warrant was intended to accomplish, but it has to do with harmonizing commerce among states with disaprate laws, and does not have to do ith telling the entire nation (and every state) “you may not sell this and we will ave you rot in our federal prisons if you do.”

    Tommy Chong is not in prison because he sent a product from one state into another in violation of reasonable, commodity-neutral regulations governing interstate commerce, but rather because of the particular commodity he was selling.

  22. Commerce within a state was entirely a state affair. By your standard, maybe Lopez ought to be overturned.

    Except that Chong *did* sell bongs aross state lines, so far as I can tell (I certainly saw them advertised in multiple states). So the Commerce clause’s limitation to “interstate trade only” doesn’t apply here.

    only a corrupt understanding of the congressional authority to regulate commerce

    My understanding of the clause is in accordance with the modern interpretation of it. Could you offer something, other than invective, to support your claim that my understanding is “corrupt”?

    Tommy Chong is not in prison […] because of the particular commodity he was selling

    “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”.

    Now, under your reading of this law, Congress lacks the power to restrict trade between states on the basis of the commodity in question. It must, therefore, also lack the power to restrict trade with other nations, or with the Indian Tribes, on the basis of the commodity in question — since all three groups are lumped together as something Congress can “regulate Commerce” with.

    Yet Congress clearly DID have the authority to forbid imports to the United States on the basis of the commodity in question. The proof of this lies in Section 9, which forbids Congress from prohibiting the importation of slaves until 1808. Odious as it was, the slave trade WAS most definitely commerce, and in section 9 we see that the authors of the Constitution had to expressly prohibit Congress from prohibiting that trade. The obvious implication of this is that the authors of the Constitution knew that Congress WOULD have the power to forbid slave imports, if not explicitly forbidden to do so. The only possible basis for this power to restrict the slave trade, is the Commerce Clause.

    Ergo, the Commerce Clause gives Congress the right to ban imports on the basis of the commodity being traded. Ergo, since “states” and “nations” are lumped together in the Commerce Clause, it also has the power to ban trade between the states on the basis of the commodity in question. QED, IMO. 🙂

    Sure, it was stupid to bust Chong. But it was legal and Constitutional, which in my opinion is more than can be said for jailing someone for having a messy lawn.

  23. My grandmother thinks that many of today’s glass blown bongs make beautiful vases. Shit you not, she has two of them without the bowls!

    Tommy Chong was just selling vases for little old ladies.

  24. Since I live about two blocks from this guy (well from his house, anyway, since he is now several miles away in the Seminole Co jail) I think I can report some local color.

    I (and the rest of my neighbors) received a circular from the State Attorney which asked (among other questions) “What impact has this *crime* had on you?” (emphasis* mine). My God, crime? You’d of thunk this guy was some kind of pervert serial killer with the tone of this thing.

    I sat down to write a reply viz “Actually I think it is you who are the criminal hounding this man…”; or words to that effect. Then I tore it up and threw it away. Maybe I was afraid Bushcroft might see it (I am not paranoid they really are out to get me). But part of it is that my yard is none to tidy and also full of “art supplies” (in my case large tree trunks to feed my wood turning hobby, I cannot call it a business, I still have to have a day job to pay the bills), perhaps I might become a target too.

    After that I knew how Peter must have felt (you know it’s bad when an atheist remembers his Sunday School lessons).

    joe

    By the way, it’s just not enough to cite aesthetics in your code enforcement. There has to be a legitimate and demonstrable impact on public health or safety for govt to become involved in what goes on on my property. To claim that you don’t like the color I painted my house comes far to close to “…establishment of religion…”. Do you know the rest or do you want me to quote the whole thing?

    Steve in CO

    Remember Fla is the home of “Firestorm Janet” (Reno that is, she who claimed in the Fla guv primary that she was opposed to the death penalty: geez Janet tell that to Tim McVeigh and all the cons you sent to death row while you were SA for the Dade-Monroe Circuit; whoops they’re all dead). While trespass on a construction site is a felony under FL law one might think that the authorities might realize that an 11-yr-old might not understand all of the implicatitions of the act. Given a youngsters facination with const equipment and partially built things, one would think a stern lecture and explanation might suffice to set him on the strait and narrow without stifling a future as brilliant engineer (Gawd, a week and an arf in juvy, the kids probably a career criminal by now). Seriously, I hope your friend has the love, strength, patience and courage to undo the damage.

  25. Geez sorry Dan

    I have to call a bullshit

    “..to regulate..” meant to make regular or consistent. it did not give the FedGov the authority to prohibit anything (except maybe states from imposing tariffs on goods from other states): witness the fact that it was thought necessary to enact a const amndt to prohibit alcohol.

  26. Were there codes dictating the aesthetic standards he’s being held to on the books at the time he bought his property or not? I say if he bought a home encumbered by rules that prohibit the kind of use he put his yard to, then he doesn’t have a right to complain. If the rules came along after he took possession, or if they’re vague mumblings about “community standards”, then he does.

  27. “..to regulate..” meant to make regular or consistent.

    It also meant (then, as now) “to govern or rule”. That is obviously the meaning being used here (it makes no sense to say that Congress was being granted the power to make international trade consistent with inter-state trade). They had the power to ban trade in commodities; witness Congress’ unenumerated power to ban slave imports.

    That aside, even if it did only have the power to make trade “regular and consistent”, that would still grant Congress the power to ban all interstate trade in a specific commodity.

    witness the fact that it was thought necessary to enact a const amndt to prohibit alcohol.

    Because the Constitution doesn’t give Congress the authority to regulate intra-state commerce; only inter-state. Prohibiting alcohol entirely required an amendment.

    That aside, who cares what the courts thought in 1919? We’re discussing the Constitution, not court interpretation of it. If you want to talk “court interpretation”, then I’m clearly right and you’re clearly wrong; the courts have basically read the Commerce Clause as giving Congress the right to do damn near anything. Your argument only makes sense if you assume that 1919 court opinion is Gospel and 2003 court opinion is Heresy; that post-30s/40s court opinion Just Doesn’t Count.

    But why assume that the 1919 courts were closer to a correct interpretation of the Constitution than modern courts are? To cite just a few examples, the early 20th-century courts believed that public schools had the authority to force students to participate in prayer, that beating a confession out of a suspect was legally valid, and that a long list of egregious violations of the equal protection section of the 14th Amendment were all perfectly acceptable. Misinterpretation of the Constitution has been a chronic problem throughout the nation’s history. Just because modern courts grant too much power to the Commerce Clause doesn’t mean that 1919 courts didn’t grant too little.

    Congress clearly had the power to ban imports of specific commodities. Since its authority to regulate imports is, in the text of the Constitution, identical to its authority to regulate interstate commerce, it is perfectly reasonable to infer that it has the power to ban interstate trade in specific commodities.

    Of course, they could avoid the whole problem by just slapping a $50,000 tax on every bong sold.

  28. Government is not reason, it is not eloquence, it is a force. Like fire, it is a dangerous servant and a fearful master; never for a moment should it be left to irresponsible action. – George Washington,

  29. Bennett,
    If neighbors are offended by something on someones property that is not a danger to themselves then they can move elsewhere….if they are unable to move then they need to suck it up and turn the other cheek. They have special neighborhoods where you are bound by contract to keep your lawn clean.

    Other people talk about the state and the community and it’s rights over individual rights, I like to call those people commies.

  30. arjay, I agree that the color of your house etc. does not justify government action. But more dramatic situations might. At what point does the presence of junk become a legal nuisance? At what point does it interfere with the quite enjoyment of the properties of his neighbors? This is not a bright-line area of the law.

  31. Dan

    Indeed, you have me dead to rights. One of the problems of libertarians is that we put too much of our own spin on the USC. I see that the 18th amdmt was intended to extend federal authority beyond into specific *intra*state commerce.

    However, I don’t think the FF intended that to prohibit any commodities, just regulate the way in which they were traded. We can’t really know, they’re all dead. You have the benefit of knowing in detail how the courts have interpreted the CC so I defer to your judgement.

  32. joe

    “At what point does the presence of junk become a legal nuisance?”

    Good question. But he says they weren’t “junk” but “art supplies”. Is what he made art? Well, is a Maplethorpe photograph art? Jesse Helms didn’t think so. Is a cow dung Virgin Mary art? Rudy Guillano didn’t think so. What about a 1975 Firebird on blocks? That’s what one of his neighbours had for some time.

    Let me explain something. This subdivision is an old land boom subdivision. In Texas surveyors call them “chimney plats”, meaning that the guy that drew it never left the warmth of the fireside. Elsewhere we call them “table top plats”. Most of us here own a lot and a half so we can meet current parcel size standards.

    Even tho it was platted in the ’20s it was not developed til the 60s, in fact when I-4 was built in the mid-60s the few homeowners who had built here were left landlocked which forced the county to “improve” the “roads” to their houses. When I moved here 12 yrs ago the roads were still not paved.

    On my excursions around the ‘hood I found the “airplane man”‘s house. It was surrounded by undeveloped lots or houses that were almost as “bad” as his.

    Of course, since then, people have bought the adjoining properties and either improved them or built new houses. And of course they have jumped on the good old American bandwagon that the gummint will guarantee their well being.

    Now, here’s a question. If you build a house under the approach to an airport, do you have a right to complain about the noise?

    Sorry, joe, this guy is a victim of neighbors who didn’t like the “color” of his house.

    s.m.koppelman is on much firmer ground when he asks “Were there codes dictating the aesthetic standards he’s being held to on the books….”

    Yes, they were. But they are selectively enforced and usually only at the behest of vindictive neighbors. But I still question the propriety of extending police powers to this point.

    Johnny Utah has the right idea. Read his post.

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