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There are now 26 comments... what are your thoughts?
  1. Librarian says

    Ticketing “non-criminal” traffic infractions? At least in my state such traffic violations Are criminal, and misdemeanors, are tried in criminal courts, and go permanently on one’s criminal record. Only way out of this is to do drivers ed or win your trial.. So I don’t see how a traffic stop is Not a Coercive Detention on suspection of a criminal offense, or temporary custody.

    Also, I don’t know why anyone who is told to get out of their car would expect to be able to get right back in in a matter of minutes… That’s just not a reasonable assumption to me. Once you leave your car, you’re far more likely to be strip searched (i.e. groped) and arrested, for whatever reason, than if it was never requested. Does anyone here have a differing opinion?

    • Individual opinions may differ on what is or is not a reasonable assumption to make.

      However, my job is to describe how the law actually works at the moment, and this is what the law is right now.

      • Does the law define “reasonable” then? Or could the case be argued that, owing to certain facts present at the time, the “reasonableness” of one’s expectation of non-custody in such a situation, may in actuality, be not reasonable in fact?

        Additionally, I was hoping to get the “reasonable opinion” of the case from a variety of “reasonable people,” which may or may not support my supposed conclusion of unreasonability, with which opinions I might more appropriately gauge and alter mine own.

        • Didn’t I go over this before?

          What constitutes a “reasonable person” isn’t clearly defined in most places, but is generally held to be an “ordinary” person without exceptional circumstances or disabilities, who shares the general values of the community. In practice, however, jurors and judges tend to insert themselves into the definition. People usually think of themselves as reasonable. So instead of asking “what would a hypothetical, objectively normal person do,” judges and jurors ask “what would I have done.”

          Reasonableness comes up all over the law, not just in the criminal realm. Torts, contracts, regulations, etc. It’s used when the law’s trying to apply a standard of “common sense.” Which is another way to think of it: an idealized notion of “common sense” that ignores personal idiosyncrasies.

      • What is a violation of law, but an illegal action, thence being done criminally? The severity of the punishment is irrelevant to mark it as a crime, you’re tried by jury (if you contest it) and the accusatory party is “The people of,” thus it must be a crime.

        Though I personally would, for more compelling reasons, consider it a civil action between the State and yoruself, owing to the pecuniary nature of the penalty, the contestment of which, makes it criminal as a breach of the public trust, owing to some hidden Presumption of Law against you thus admitted by your acceptance of the validity for the jurisdiction of the claim. But of course I have no proof of that, its merely my opinion, and fairly irrelevant in outcome.

        The state would be Texas, for your reference, and my source was the Court Clerk and the various documents to be signed, as I was filing a recent ticket, and it’s absolution, for just such a criminal violation. (This was before I started seriously self-educating in law)

        • No, violating a law isn’t automatically a crime. There are all kinds of laws you can disobey without exposing yourself to criminal penalties. Crimes are only one of many many different kinds of law.

          Texas is different from most states in classifying speeding tickets as a (very) low-level misdemeanor — I’ve heard that this is so specifically to preserve trial by jury, but don’t quote me on that. But even so, that doesn’t affect the relevant consideration, which is that people don’t expect to get locked up for it. They tend to expect they’ll be back on the road in a few minutes. The issue isn’t whether they’ve been detained for a crime, but whether people in general think the detention is going to be so significant as to be coercive. And our courts just don’t think so. Which is why cops don’t Mirandize you when they ask how fast you think you were going.

          • They’re so low-level that they apparently aren’t even reported for background checks for sensitive jobs (although my job doesn’t officially involve driving, which might be a factor), even though others get the same offenses on their background checks. Or perhaps they were too old to report; I’m guessing that means roughly 5 years or more (wild guess; I’m really not sure when my last ticket was; cruise control works wonders).

            I was asked to get out of car once; apparently that was the officer-safety thing at the time.

          • Isn’t it the lawyer’s job to convince the jury (or judge, in civil matters) to rule according to his own definition of a “reasonable person,” and thus win the trial argument for his client?

            Additionally, what consists of a “crime” then? Mala in se, or Mala prohibita?
            Isn’t every illegal act mala prohibita by definition?

            So Riddle me this:
            If speeding is illegal, and thereby prohibited by law (mala prohibita), or vice versus, being prohibited by law, and thereby illegal, wouldn’t that by extension mean that speeding is criminal?
            And if it is not absolutely prohibited by law (and thus not in fact criminal), how then do the courts hold any jurisdiction to try someone accused thereof, or penalize it thereby?

            • Yup, part of the lawyer’s job is convincing the “finder of fact” that a reasonable person would have thought/done X.

              For a definition of crime, I suggest you go back to the very first page of this comic!

              Mala in se means it’s an inherently bad act, like murder. Mala prohibita means it’s only against the law because we say so, like filing to file a certain form with a certain agency. There are good arguments out there that crimes should only be mala in se, and that mala prohibita laws should only be subject to civil penalties.

              Just because something is prohibited by law, that does NOT make it a crime. The law has to define the violation as a crime, subject to criminal punishment. It’s not a crime to forget to get your car inspected by the deadline, but the law prohibits it and you can get a ticket for it. It is a crime to steal a car, however, because the law prohibits it as a crime, and you can get criminal punishment for it.

              Criminal punishment isn’t the only kind of penalty. There are civil penalties such as damages, fines, suspension/termination of licenses, disqualification from government-controlled pursuits, etc. etc. etc.

              Courts have jurisdiction over all law, not just criminal law. They hear contract disputes, personal injury cases, free speech, landlord-tenant, tax, property, environmental, diplomatic, employment, divorce, trademark, etc. etc. etc. Almost every area of law has some sort of penalty for breaches. It’s odd to suggest that the courts can only hear criminal cases. (We’ll get into the jurisdiction of courts in more detail when we get to Constitutional Law.)

              • I prefer Mr. Bouvier for my definitions, admittedly.

                I’m not quite sure I follow you with regards to non-criminal mala prohibita, if you could help me understand, I’d appreciate it.
                For the example, suppose there is a statute regarding marriage, providing for a “ceremonial marriage,” and an “informal marriage,” and the various requirements for each. This would be a legal requirement statute, presumably, so, I’m assuming it would be illegal to marry in a manner inconsistent with this statute. However, the criminal code does not list marriage outside of these legal requirements to be a crime, or provide for criminal penalization therewith. Would that then mean that engaging in a marriage contrary to statute would not be a criminal action (for instance, holding a ceremonious marriage without license)? For the sake of clear severity, let’s assume also this was a marriage involving a party under the statutory age requirement.
                Are you telling me this would not be considered a crime, and thereby unpunishable?

                I understand courts have jurisdiction over all disputes of law within the territory and regarding matters constitutionally afforded to them, but if something is not a criminal cause, it must then be either a Civil or Admiralty cause right? Most people aren’t in the Armed Forces, so they go to Civil Court instead right? But that there is precisely what’s confusing me. How do the courts have enforced jurisdiction to try civil matters outside of mutual consent to that particular jurisdiction?

                • Law dictionaries in general are not a source of law. Especially not one from before the Civil War that most actual lawyers have never even heard of. You want a credible source, go to the statutes themselves and the cases that interpret them. The higher the court and the more recent the case, the stronger the authority. The law changes and evolves, especially common law, so the older the discussion the more likely it’s presently inaccurate. Also, dictionaries and hornbooks and webcomics merely discuss the law, they’re not the law itself.

                  With respect to your hypothetical example, you’re saying someone married a person who was underage, and the state doesn’t recognize it as a valid marriage under its laws, but there’s no law on the books making it a crime. Under those circumstances, absent any law making it a crime, it’s not a crime and couldn’t be subject to criminal punishment. There might be separate criminal offenses for impersonating a clergyman or having sex with someone who’s too young, or what have you. But if the marriage itself wasn’t a crime then it wasn’t a crime. It’s only a crime if the law says so. (In real life, the problem is less likely to be that the law didn’t criminalize something that ought to be a crime. It’s much more common for the law to criminalize something that shouldn’t be a crime, either explicitly or by accident.)

                  I think you’ve brought up jurisdiction before, and it sounds like you’ve been misinformed by some “sovereign citizen”-type sources. They’re wrong. Laughably, dangerously wrong. And I don’t allow disinformation here, so that kind of stuff is liable to get modded. There are plenty of other websites that welcome that kind of stuff, but this isn’t one of them. And forget about admiralty law unless you’re dealing with ships at sea.

                  Courts typically have “general” jurisdiction — think of a federal court, where a single judge can handle all kinds of civil and criminal cases. Some courts have specialized jurisdiction, like small claims courts or tax courts or what have you. They get this jurisdiction by operation of law. The parties’ personal consent to jurisdiction is irrelevant.

                  In civil cases, courts have subject matter jurisdiction (what kind of case they can hear), personal jurisdiction (whose cases they can hear), and “in rem” jurisdiction (jurisdiction over stuff, rather than people). For a full discussion of all this, you’ll have to read up on Civil Procedure. It’s an entire course unto itself in law school, just to cover the basics. These comments aren’t big enough to even scratch the surface. But I guarantee you, a court doesn’t need anybody’s consent to have jurisdiction over them or their dispute.

  2. Librarian says

    Firstly, thank you for taking the time to respond to my inquiry thoroughly.
    I think I understand, mostly, what you mean by non-criminal mala prohibita now, thanks to your exposition on my hypothetical, though I’m still a little fuzzy on criminal and civil jurisdiction.

    I won’t deny that I’ve delved somewhat into the opinions of the sovereign citizen movement, it’s actually what made me first interested in law, however, I’m attempting to draw my own knowledge from many sources and come to the proper and accurate conclusion in all respects, as opposed to the “prevailing opinion” of present-day thought.

    With regards to dictionaries: If words are not governed by their definitions, what then governs them in fact? I don’t dispute that court rulings add to the common law, but if words have no concrete and factual meaning, as understood in legal diction, and then recorded in dictionaries of law, how can anyone understand the law? If Statute prevails over the common understanding, surely this serves only to wholly convolute the law? If Government can redefine the meanings of words by statutory authority, no manner of Rule of Law could exist, for what word once was defined and used specifically as, and to mean, something, no more appears to mean that same concept in law. Case-in-Point: “Marriage,” though I hope it need not be necessary to expound on what I mean, for the political controversy that arises.

    And if Dictionaries of Law, being records of legal diction, do not serve to assist in understanding the true and proper meaning of words, do not, in fact, do so, what is their worth? A word can not lose a meaning, only have meaning added thereto, else language would cease to be understandable. And so, what better place to find the Original Meaning of a word (in law), or the appropriate legal label for a particular concept (in law), than in the most early of dictionaries? Principles for the Interpretation of law still exist, no? How then can the law of statute usurp reason? And if Reason in fact, prevails over law, as reason itself dictates, would not Maxims of Law, being for the interpretation thereof, and reason itself, of necessity, be the highest of law in law?

    • Therefore, and although I say this by way of supposition based upon reason-ability, I posit here to you, (1) There is no disputing against or denying principles, Because, (2) A maxim is so called because its dignity is chiefest, and its authority most certain, and because universally approved by all. Thus, (3) An argument drawn from authority is the strongest in law.
      Hence, (5) There is no disputing against a man denying principles, And (6) He ought not to be heard who advances a proposition contrary to the rules of law. And because (7) Law is the dictate of reason, And, (8) Nothing against reason is lawful, Therefore, (9) The laws themselves require that they should be governed by right. By this I mean that all Law is governed by the Maxims, and that this be not Law, but indisputable fact.

      And whereas, (10) An ignorance of terms is to be ignorant of the art. And (11) The meaning of words is the spirit of the law. It follows that (12) Inquire into them, is the way to know what things are really true. And since, (13) What is first is truest; and what comes first in time, is best in law. And (14)We can do nothing against truth. It follows that (15) The origin of a thing ought to be inquired into.

      And whereas, owing that maxim dictates, (16) The custom of fixing and refixing (making and annulling) laws is most dangerous. (17) The power which is derived cannot be greater than that from which it is derived. (18) A delegated authority cannot be again delegated, And (19) A mandatory cannot exceed the bounds of his authority.
      As well, (20) A twisting of language is unworthy of a judge. (21) To a judge who exceeds his office or jurisdiction no obedience is due. And (22) In the greater power is included the smaller license.
      It is reasonable to assume that (23) The voice of legislators is a living voice, to impose laws on things and not on words. And (24) That is the best system of law which confides as little as possible to the discretion of the judge.

      Therefore, it can be presumed that (25) Things which have had a certain interpretation are to be altered as little as possible. Thus, (26) What is done contrary to the custom of our ancestors, neither pleases nor appears right. And (27) Although the law speaks generally, it is to be restrained when the reason on which it is founded fails. And although (28) The multitude of those who err is no excuse for error. (29) It is better to recede than to proceed in evil. As to the interpretation of words.

      Therefore, I conclude, reasonably(6), that, the origin of words(16), is the root of the law(2, 3, 9), which meanings(11) hold the spirit thereof. And that because certain definitions, or in other words, certain usage(25, 26) of words, came first(13) in law, as recorded in dictionaries of much earlier date, the truth(14) of law, is found therein, in contradistinction, to the opinions of judges(20, 21, 24), or the statutes of legislators(16, 23, 27), which must by necessity be bound(9, 17, 18, 19) to, and by, the Rule of Law(1, 2, 7, 8, 21, 27), themselves. And when such lawful interpretation(11, 25) of words, which is fact, is at odds, with the prevailing(28) opinions or statutes of a supposed judicial or legislative authority(17, 20, 23), such interpretation, is, and ought to be found, wholly unlawful(8, 9, 26, 27), and thereby null and void(19, 21) in law.

      • This how my thought process and evaluation works anyhow. If there are hole to be poked in it, please poke them. I like my positions to be watertight.

        • “Brevity is the soul of wit”. I really can’t make heads or tails of what you’re trying to say, but the gist of it seems to be “The meanings of words don’t change and are absolute, so the law also never changes”. If that’s what you’re getting at, it’s patently false. Words change meanings all the time, as language and society evolves. Old words fall into disuse, new terms and meanings appear. A few easy examples – telling someone that you’re “gay” has a very different meaning than it did 50 years ago, 100 years ago your “toilet” was another term for your morning grooming routine, and when you “knew” someone about 500 years ago, you were really, really close (you were sleeping with them). Language is a constantly evolving thing.

          And so is the law, even legal terms. Let’s even use your example, “Marriage”. Marriage was defined at one point as “The union of a man and a woman as a single legal entity represented by the husband”. This meant that, essentially, when a woman got married, she ceased to have any right to act on her own behalf, and could essentially do nothing without her husband’s consent. But society changed, and so did the law, and now a married woman can act on her own behalf. Are you suggesting it shouldn’t have?

          • One example of “informal marriage” is common-law marriage; supposedly this is when two people act married, and supposedly one form of evidence of this is filing income taxes as “married”.

            As I mentioned before, terms are defined by the statues in question. For example, a statute about rape will specify what the word “rape” means in that specific context. If you look at a dictionary, you’ll see that nearly all word have multiple meanings and inflections; many can be determined by context. So, the definition in or referred to by each statute makes it clear that it’s not talking about, for example, the plant named “rape”.

        • Librarian, the simple answer is “You’re wrong.”

          The slightly longer answer is “Say what you will, a dictionary is not the law. All a legal dictionary does is try to describe the jargon, not define the law itself. And an ancient dictionary, that was written before the vast majority of laws now in effect, is even less useful for understanding what the law is now.”

          I get that you wish the law was different. But asserting that it IS different is going to get you nowhere. It’ll only get your comments modded here. It could get you in real trouble in a courtroom.

          And I’m closing this discussion. My house, my rules. Feel free to continue it on some other forum, but not here.

  3. WJS says

    This looks like another “matter of law” (read; “because we say so”) issues. Even so, just because your “typical traffic stop” has been ruled to not require a caution means very little. Your typical traffic stop doesn’t involve security video from banks. It was painfully obvious from the beginning that this was not a typical traffic stop for typical traffic infringement purposes.

  4. Reasonable people do not expect to be able to drive away from traffic stops until the police says they can drive away. Therefore, they are held at the mercy of the police. It doesn’t matter that they expect the interaction to be temporary. Being temporarily at the mercy of the police is still being at the mercy of the police, and per the reasonable person standard, qualifies as being in custody.

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