63. Talking vs. Taking the Fifth Posted on May 1, 2014 by Nathan Just a reminder that Patreon donors who pledge $10/mo or more can get the full-resolution 300dpi 2800×3400 pages, instead of these dinky 72dpi 700×850 screen versions. Click here to see the rewards for other levels of patronage! Post navigation If you're on desktop, you can navigate with your left and right arrows. Join the conversation!There are now 50 comments on pg 63. Talking vs. Taking the Fifth.What are your thoughts? I can’t tell what’s off-panel, but something tells me that character needs to work on her trigger discipline before she recklessly shoots Marvin in the face. Reply ↓ The one on Lynne’s computer screen in the top left panel? Looks like she’s trying to shoot someone, actually. But dagnabbit, I wasn’t trying to make it look like that someone was an actual character on this page. More something in the foreground between Tina-Tina and you. Blast. What I was aiming for (ha) was some composition to guide the eye around the page smoothly: (Though the extent of my art training consists entirely of a short rudimentary drawing class in the summer of ’96. One of these days, I really do mean to take some proper lessons. One of these days…) Reply ↓ Intentionally shooting someone does actually make more sense than fleeing with that facial expression. I might be a bit too quick on the draw with my gun safety nitpicking. Out of curiosity, would something like that scene in Pulp Fiction generally be regarded as reckless by the law? Or would that depend on if the jury was taught about gun safety growing up? Reply ↓ Recklessness requires some awareness of risk, yet you did it anyway. Negligence, on the other hand, is more about not being careful enough. Think about it like this: 1) If I trip on an unseen crack in the sidewalk and bump you into oncoming traffic and you die, it’s just an accident — I had no mens rea. 2) If I was checking Reddit on my phone while walking, didn’t see an obvious crack, tripped and bumped you into traffic, then that’s negligence — I should have been more careful. 3) If I shoved you into the street without looking first to see if cars were coming, though I was aware that cars might be coming, then that’s recklessness — I was aware of the risk and did it anyway. 4) If I saw a bus coming and shoved you in front of it, then that’s intent — I meant for that bus to hit you. Now watch the scene again and decide for yourself if Vincent shot Marvin accidentally, negligently, or recklessly (we can assume he didn’t mean to). -=-=-=-=- [BONUS FACT: That scenario with bumping you into traffic was how I originally was going to explain mens rea before I came up with the unfortunate toddlers. I still use it when explaining it to people in person, because it’s short and sweet.] Reply ↓ I guess if they’ve never taken a gun safety class and are unaware that pointing a gun at someone with your finger in the trigger guard can result in shooting them, it would be negligent. If they have, it is reckless. MA requires a gun safety class in order to get a licence so a person only could avoid a manslaughter charge if they possessed the gun illegally. I wouldn’t be surprised if MA had a statute that, aside from the penalties for illegal possession, imposed a higher category of mens rea as a matter of law. Reply ↓ If someone got away with murder 1 because their gun was illegal and they told the jury “I didn’t know how to use it” I would cry :( Reply ↓ Murder 1 requires that their actual intent was to kill the victim. They wouldn’t be guilty of it anyway. Reply ↓ I’m going to have to disagree. I would think that Reasonable Person would think that if you put your finger on the trigger of a gun, it might be fired, even if you haven’t taken any safety classes. Cast my vote for “reckless”. Reply ↓ Is the standard whether a reasonable person would have known, or whether the defendant did know? Reply ↓ Maybe this is where we need to consider “Depravity” the person is not guilty of one crime, but two crimes that compounded. They purchased an illegal gun, and in doing so skipped mandatory firearms training, and then they were reckless with it resulting in someone’s death. While the combined crimes are not terribly depraved they deliberately violated the law in a way that endangered public safety three times (as not knowing how to use of the weapon is no excuse as knowing how to use the weapon is required by law). The person has not just demonstrated recklessness, they have demonstrated criminal intent (buying a gun) which is multiplied by recklessness in not training themselves, and compounded by their final act of murder. As a prosecutor I would be tempted to call for Murder 1 on the grounds that this person planned to create a dangerous situation that resulted in someone’s death. Reply ↓ What law requires a person to know how to operate a gun before owning one? And which state has such a law? I’m confused. I thought licenses were only required for carrying a weapon in public places, or for making commercial purchases of controlled items (though those intents themselves are questionable), and that private ownership of property was unregulated, provided it was acquired legally (not stolen) in the first place (as inheritances, gifts, other private trades, and acquired abandoned property are not regulate-able under commerce laws). Am I wrong? Reply ↓ Sounds like you live in a western or southern state. Other states have much more restrictive rules on private gun ownership, and possession in your own home without a (sometimes absurdly expensive and practically impossible to obtain) license can be a crime. In some places you have to register your guns as well, so the state knows who has what. Here in NYC, we get a fair number of people who move here from a state where such licensing is unheard-of, and wind up getting arrested for having an unlicensed gun in their own home. Or they’re just passing through and get pulled over with one in the car and get charged for that. There are at least four other states that require a license merely to own a gun, I think. And several cities around the country have local ordinances imposing tough restrictions that the rest of their state doesn’t have. Reply ↓ I thought that even among states with restrictive gun laws, most still had provisions that if a weapon is secured in a vehicle and you’re just passing through, it’s acceptable? Reply ↓ As I said, MA state law requires a license (or at least Firearms ID card) to purchase and own a firearm. https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXX/Chapter140/Section131 Reply ↓ I will give a ‘reasonable person’ response to that for states that do not require firearms training. If you chose to purchase an item you did not know how to use safely you were negligent. This is as true of a lawn mower as a gun. Once you picked it up and waved it around you were clearly reckless as you knew you were untrained. Even without a specific law the state could punish you for the recklessness of the act itself, unless you can demonstrate why you had good reason to think it was not reckless. In a funny variant of this, Native Americans in Canada’s north are assumed to be firearms trained (they skip a lot of training if they join the armed forces who have a special program for them). Reply ↓ Well, wouldn’t you know it? I see a lot of special interest exemptions in that MA law, but no definition for their use of the word “possession,” neither “firearm,” nor “purchase,” nor “person.” How does anyone know what it actually says? I suppose maybe somewhere else those definitions are provided? Nathan, Yes, I live in Texas, and I certainly know New York likes to push the limit on the constitutionality of their gun control laws. I really wonder how any of these laws hold up against Article IV sec. 2 of the US constitution… Not to mention the issuance of a license implies the permission (by competent authority) to perform an otherwise illegal act, but is that act really illegal? I wonder about the competency of the issuing authority to do so. Also, something interesting about licenses 3. An implied license is one which though not expressly given, may be presumed from the acts of the party having a right to give it. The following are examples of such licenses: 1. When a man knocks at another’s door, and it is opened, the act of opening the door licenses the former to enter the house for any lawful purpose. See Hob. 62. A servant is, in consequence of his employment, licensed to admit to the house, those who come on his master’s business, but only such persons. Selw. N. P. 999; Cro. Eliz. 246. It may, however, be inferred from circumstances that the servant has authority to invite whom he pleases to the house, for lawful purposes. See 2 Greenl. Ev. §427; Entry. 4. A Iicense is either a bare authority, without interest, or it is coupled with an interest. 1. A bare license must be executed by the party to whom it is given in person, and cannot be made over or assigned by him to another; and, being without consideration, may be revoked at pleasure, as long as it remains executory; 39 Hen. VI. M. 12, page 7; but when carried into effect, either partially or altogether, it can only be rescinded, if in its nature it will admit of revocation, by placing the other side in the same situation in which he stood before he entered on its execution. 5. – 2. When the license is coupled with an interest the authority conferred is not properly a mere permission, but amounts to a grant, which cannot be revoked, and it may then be assigned to a third person. When the license is coupled with an interest, the formalities essential to confer such interest should be observed.” Bouvier’s Law Dictionary 1856 If I understand this correctly, because the execution of license to purchase a weapon once executed, would, after revocation, leave the licensee with that weapon, it must then amount to a legal grant of ownership, no? Reply ↓ It sounds like you are forgetting concurrence. It is not enough to have criminal intent and cause someone’s death for it to be murder one. The specific act that caused the person’s death has to be done with the specific intention to kill that person. So for it to be murder 1 in this case, the defendant would need to have pulled the trigger of the gun with the specific intention to kill the other person. If the defendant only pulled the trigger with recklessness then they are guilty of manslaughter, not murder. Whatever other crimes they committed that led to their possessing an illegal firearm are irrelevant, because depravity is not about the danger posed by the combination of crimes in question. Rather, depravity is about the danger or immorality of each individual crime. Of course in real life this would depend on how the criminal code of the state in which this incident takes place is worded, because not every state is going to have the exact same standard of depravity and how it applies to homicide. Reply ↓ Yes, but the concealed carry laws in the state of Fremont are much more lenient. Reply ↓ Depends, was he waving his gun arround to intimidate marvin? Then its recklessness. He knows gun he’s a hired killer, he know waving them at people is a dangerous activity, but he did it anyway. Though negligence can also has a strong argument for it. Reply ↓ I think Mens Rea is ultimately meaningless here. He killed someone while committing a felony. That’s murder. Reply ↓ The felony is the murder that they committed when they retrieved the briefcase wasn’t it? In that case, it all depends on whether they were in flight from the commission of the murder when Vince shot Marvin, or whether the flight was over. In the first case, Vincent is guilty of felony murder, in the second case, he is not guilty of felony murder because the shooting happened after the other felony and the flight from it where already over. Reply ↓ Well, they did commit that murder, too, but I was thinking “kidnapping”. I don’t believe Marvin was there of his own free will. Reply ↓ Nathan, if you’ve ever wanted to do a podcast, “legal analysis of movies” would be amusing. Podcasts are a lot of work though. Reply ↓ If you ever do that podcast, do My Cousin Vinny. Reply ↓ “Scientific analysis of movies” is pretty funny sometimes. There’s a site which dies that, but I don’t recall the URL; it’s been a while. Some movies are so far from scientific fact, and aren’t fantasy, that I lose interest completely. Artistic license only goes so far. Reply ↓ Your artwork is great (and clearly constantly improving), better than many who’ve had good training. I see many commercial comics where it’s not always clear what the flow direction is, because they use different-size boxes, etc. Reply ↓ So…why is she lifting her dress up? Reply ↓ It makes a great distraction if the other person is at all a straight male. Either that or she’s in need of getting her fans serviced. Reply ↓ Sex & violence — what the subcommittee’s on about. Reply ↓ Hoo boy, this’ll end well. And it looks like Sen. Redspecs (?-FR) or whatever his name is got a quick crash course in 5th Amendment applicability while Richard Head’s 2 o’clock shadow grew back. So, perhaps I’m getting ahead of the curve here, but I’m getting the vibe that outbursts and off-hand comments like that invalidate 5th amendment protections entirely? Or does it just open the door to clarifying questions specific to those comments? Reply ↓ I was JUST about to comment how that webcomic character looks like a female version of Tin-Tin when I saw the title in the next-to-last panel. Well done, sir. Reply ↓ And thanks to Leif, whose pledge just made this happen: Reply ↓ See, this is just more proof that webcomics are the tool of the devil. Reply ↓ Where the hell is an upvote button when I need one? Reply ↓ So, Al Feldstein, the long-time editor of Mad Magazine died on Tuesday. One thing I learned from a story that ran on NPR today is that when Feldstein drew and wrote for EC Comics before becoming the editor of Mad, his work was mostly featured in content that (for the time) was considered racy and even graphic. As it turned out, Feldstein was among those called to testify before the Senate on whether or not comics such as the ones he was engaged in creating were doing harm to American youth? Coincidental story line? Reply ↓ Not to answer my own question, but obviously you had to have started producing this episode before Tuesday. Still, it’s interesting how art imitates life at times, eh? Reply ↓ Not only that, but there’s the Lois Lerner thing going on now as well. By the way, the transcripts of the Senate hearings on the evils of comics are worth a read. Principles and pettiness, openness and misunderstanding, opportunities lost, fear, cowardice, honesty… it’s all there. Reply ↓ Thanks for the recommendation, and as always, keep up the good work! (Did you see my deathbed plea a page or two ago concerning some First Amendment content?) Reply ↓ Thanks! As for the First Amendment stuff, I haven’t even begun to outline it, much less script it out. There’s a lot of con law to cover before we even get to the amendments. Reply ↓ It’s just as well. It’s not like either of the scenarios I proposed would ever happen in real life… Reply ↓ I said this above, but the comment reply is pretty much maxed out, so I’m reposting it here for potential discussion. License: “4. A Iicense is either a bare authority, without interest, or it is coupled with an interest. 1. A bare license must be executed by the party to whom it is given in person, and cannot be made over or assigned by him to another; and, being without consideration, may be revoked at pleasure, as long as it remains executory; 39 Hen. VI. M. 12, page 7; but when carried into effect, either partially or altogether, it can only be rescinded, if in its nature it will admit of revocation, by placing the other side in the same situation in which he stood before he entered on its execution. 5. – 2. When the license is coupled with an interest the authority conferred is not properly a mere permission, but amounts to a grant, which cannot be revoked, and it may then be assigned to a third person. When the license is coupled with an interest, the formalities essential to confer such interest should be observed.” Bouvier’s Law Dictionary 1856 If I understand this correctly, because the execution of license to purchase a weapon, once executed, would, after revocation, leave the licensee with that weapon, would that not amount to an interest for the licensee? And if so, that would make it a legal grant of ownership, no? Likewise for Possession, if licensed to posses an item, when revoked, would not the licensee still possess the item, albeit now illegally? Thus license for possession must then confer a grant of right to that possession? Am I wrong? Reply ↓ There are many different uses of the word “license” in the law. It looks like your 1856 source is discussing the word as used in real estate law. The kind of license you’re talking about, however, is governmental permission to do something that you couldn’t otherwise do without permission. You see this meaning a lot in activities that the government regulates – you need a marriage license (to prove you’re marrying a real person, that there’s no funny business going on, that one of you isn’t already married to someone else, etc.)… you need a driver’s license (to prove you have the bare minimum skills and knowledge to be allowed on the roads without risking too many deaths [the bar is really low on this one because as a society we’re willing to accept a certain level of fatalities and injuries for near-universal mobility])… and some states require a firearm license (sometimes to ensure a basic competence and safety awareness, sometimes just to make it nigh impossible for most people to get one, depending on the state). It’s not a grant of rights to property, but rather permission to engage in regulated activity. No possessory rights are conferred, nor would any remain once the permission was revoked. Hope this helps. Now back to the Fifth Amendment. Reply ↓ Interesting point on fatalities vs. mobility. I don’t think we as a nation have ever really had that conversation, things have just sorta panned out that way. We have a lot of ancillary conversations to that (funding of public transit, minimum driving age, GDLs, NJ’s orange sticker thing, vision testing of elderly drivers, etc.), but we’ve never really asked ourselves what price we pay, as cars are the most deadly weapon in this country. Also, I’ve always thought it odd how little recourse there typically is when the state revokes a license. I would think that even in such cases where the activity regulated by the licensing is not considered to be a right, the Privileges or Immunities Clause would nevertheless apply, and would appear to require due process whenever any ability is revoked or denied by the state. Reply ↓ A few days ago, I was considering how a good-quality Virtual Reality driving simulator could revolutionize driver education. Instead of merely teaching people to drive right and hoping the do it, a VR simulator could encourage them to do the wrong thing, and then they’d have some horrible accident. For example, back up and run over a crowd of kids hiding in your blind spot. Hundreds if possibilities and you could run through all of them, as many time as needed for the driver-to-be to learn the right thing. Virtually guarantee they’d suffer from PTSD and be nervous wrecks afterwards, but they’d damn sure know how to drive safely — assuming you can even get them near the street. Reply ↓ Regarding the intersection of the fifth and the fourth. If I have a journal, or a list of passwords and accounts, and that file is itself password protected, how can I be made to give up my memorized password? It seems to me, if I know there’s something incriminating, or at least likely to look bad, in the document, I should be able to withhold the contents of my memory, the password to access it, even if a subpena could be used to require me to hand over the file itself. What am I missing? Reply ↓ Nathan answered a few pages back that, while you can’t be compelled to give up the password, you can be compelled to give up the decrypted file. Reply ↓ Thank you. I just found this, via a link from another webcomic, (I think,) and caught up. But I quit reading all the comments somewhere back. Reply ↓ I guess it’s time to start looking into Deniable Encryption. I heard it mentioned once before, now it sounds useful from a civil rights position. https://en.wikipedia.org/wiki/Deniable_encryption Of course, anything unbeatable today, may well be trivial to crack before any supposed statute of limitations runs out. Reply ↓ Is Tina-Tina’s dress supposed to be the same in both frames? It looks subtly different, slightly more than you’d expect from the change in viewpoint (semi-upskirt). Reply ↓ No, the first frame is a very low-waisted 1920s dress, the other one has a more standard waist but worked better. Reply ↓ Class ParticipationCancel reply Advertisements: Post navigation If you're on desktop, you can navigate with your left and right arrows.