Schaeffer Cox trial underway in Alaska

[davids]

But that's not what you *wrote*.

What you wrote is that "A great many of those are strict liability crimes where the offense isn't really doing anything..."

Which lead me to believe that you thought that there were "strict liability crimes" for which someone could be found guilty without actually doing anything.

One could be forgiven at this point for just thinking you're trying to be argumentative. But i'll indulge. And, to be fair, what I wrote was aimed at this audience, which usually consists of persons who are very legally versed and for whom what I wrote would be understood (as strict liability crimes do exist and aren't something which I made up for a post on quatloos).

But, actually, what I wrote was different. You're having to splice through the middle of my sentence to get it to read like that, in fact. What I wrote was "A great many of those are strict liability crimes where the offense isn't really doing anything, or having any mental state, but rather owning a firearm or weapon of a variety that isn't allowed by some governmental entity, or not having the appropriate papers for it (arguably all dubious bases for criminalization under the Second Amendment, but your mileage may vary). "

Again, it could be written better. But, the concept that phrases separated by commas should be read in the disjunctive isn't really all that new. But regardless, you've had the concept explained to you now, been given a wikipedia link, so what's your beef exactly?

If what you said was wrong, and there is no such "strict liability crime," that's fine. But you seem to be accusing me of "combining a couple of concepts" when all I was doing was responding to what you yourself had written.

There is such a thing as a strict liability crime. Once again, look at the link I provided or google it for yourself. Better yet, go to law school. You don't have to take my word for it.

All of which is, to coin a phrase, "bovine flatulence" that has very little to do with what you wrote and what I responded to.

Schaeffer Cox was convicted of a boatload of crimes which are either strict liability (no mens rea) or which are perilously close to that. If you had bothered to read the article I linked you would understand that having serious offenses of a strict liability nature is not a good thing for a free society.

Prove it. Provide evidence of a statute that makes it a crime for me to own a weapon that is located in Spain.

I never said that it is a crime to own a weapon that is located in Spain.

In my state, the wrong combination of where you have the gun,

That's my point exactly. "Where you own the gun" is "possession" and not "ownership."

Third (and perhaps most important), the possession of something is "doing something." Unless you were born with a gun duck-taped to your hands, if you "possess" a gun then you bought it, picked it up, didn't put it down, or did *something* to acquire or maintain possession of that gun. Mere possession is therefore the "doing something" that is the "actus rea."

I'll leave "mens rea" and other issues to others.

If it is, there should still be a requirement that there be a mens rea. For example, if one is driving a car where a passenger left contraband, one may have possession of it, but unless that is "knowing" or greater mens rea, there is no criminal mindset and in my idea of a just legal system, should be no statute which would criminalize that.

So you're saying that there are people who have been convicted of crimes because automatic weapons were discovered in the glove box of their car and they have no idea how they got there?

If not, then what the hell are you talking about?

First of all, no one said that strict liability crimes always have to do with automatic weapons. It could be a revolver. It could be a locked compartment in your vehicle, being transported 5 miles from one location where it is legal to have (office) to another where it is legal to have(home). If you're not familiar with such laws, then you're just showing your ignorance.

Nothing I'm saying here other than my own editorializing and statements of preference are anything which I think any legally trained person would disagree with. I'm not engaging in any crazy theorizing here, rather, this is stuff right out of my criminal law courses in law school way back when.

Right. There are lots of criminal law courses that talk about the problems of people convicted of having automatic weapons in the glove boxes of their cars that they have no idea how they got there.

I realize you think you're being witty or snarky but you're just being foolish. If you actually went to law school, instead of trying to debate the existence of a type of law with someone who actually has, you would probably take a course in criminal law and in criminal procedure. You would likely end up discussing these very things. (Though again, you demonstrate being needlessly argumentative and clueless by trying to characterize all strict liability crimes as involving automatic weapons).

There are many a criminal trial where the issue of whether the person who had possession of an item had the requisite mens rea for conviction (usually "knowing" for a possession type of charge) and that is the way it should be; in a strict liability context, you have possession and that is all that has to be proven, no intent, no act towards the furtherance of anything that would historically be considered a crime, nothing, nada zilch. Instant criminal. If you didn't live in a bubble, you'd probably realize that it has happened to a few people you know.

[davids]

So, even if you weren't aware that you had the gun or the ammo, etc., you could be validly convicted?

Yes.

In Texas (my state), the statute expressly provides for a sort of "mens rea requirement" to the concept of "possession" -- and this is before you even start talking about the formal mens rea levels which are, in Texas: (1) intentional conduct; (2) knowing conduct, (3) reckless conduct, and (4) negligent conduct. The Texas statute says that for possession to be culpable at all, the possession must be "voluntary". And, with respect to "possession," the term "voluntary" is defined in terms of a level of "awareness":

Sec. 6.01. REQUIREMENT OF VOLUNTARY ACT OR OMISSION. (a) A person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession.

(b) Possession is a voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control.

---excerpt from Texas Penal Code section 6.01 (bolding added).

That is from Texas, not exactly a gun-unfriendly state, and is not a strict liability law.

[davids]

Well, yes, as far as anyone knows. There are people convicted of crimes because automatic weapons were discovered in the glove box of their car and they claim they have no idea how they got there. The matter isn't investigated because it isn't an element of the crime. (Well, maybe not the glove box. Under the back seat or in the trunk (boot), perhaps. A claim that you don't know that an automatic weapon is in the glove box is a bit absurd.)

That is LPC's red herring. A strict liability offense does not have to involve automatic weapons. It can be a 5 shot revolver. Or whatever the item is.

[davids]

....A claim that you don't know that an automatic weapon is in the glove box is a bit absurd.)

You're saying that no one can put an automatic weapon in the glove box of your car without your being aware that the person has done that? Really? You can't think of any factual situation where that might occur?

I certainly can.

You loan your car to someone who you believe to be a friend, and unbeknownst to you he is trying to frame you. So, while he has your car, he puts a weapon in the glove box.

Now, frame-ups don't happen to most people (especially to people like you and me who are unlikely to have "friends" who would want to frame us), but these things probably do happen.

Yes, and that is exactly why a mens rea element is important, not just in law school classrooms but in the real world. I am actually surprised that the concept of strict liability crimes is not better known to persons here. But they do exist, be that as it may.

[davids]

I have yet to see anyone else in this thread cite a statute regarding a gun possession crime where there is literally NO MENS REA element that needs to be proved by the prosecution. There may be such a statute, but no one has cited it yet.

I'm out of the office but I'll get you one later.

[Famspear]

I have yet to see anyone else in this thread cite a statute regarding a gun possession crime where there is literally NO MENS REA element that needs to be proved by the prosecution. There may be such a statute, but no one has cited it yet.

I'm out of the office but I'll get you one later.

Bovine, with all due respect, you're barely treading water here. LPC was right on target. You made an incorrect statement, and he responded to exactly what you wrote. You then tried to argue that he was somehow mixing up different concepts. He wasn't. You are the one who made the statement, and he responded to it appropriately.

LPC is in fact an attorney with many years of experience.

You have made several mistakes in this thread. LPC has not.

You incorrectly "corrected" another poster on the issue of which court (federal or state) had excluded the tape recordings in the Cox case. I corrected you on that.

You incorrectly stated that the charges against Cox represented strict liability crimes. They didn't. I corrected you on that.

I am wondering why you are making so many mistakes in this thread.

[Famspear]

I am actually surprised that the concept of strict liability crimes is not better known to persons here.

No, you're not surprised. You're pretending to have a level of knowledge of the subject that you obviously do not have, and you haven't done your homework. You're barely treading water here. And you're in no position to evaluate the knowledge of the rest of us here with respect to the concept of strict liability crimes. You've made one mistake after another on the topic. Meanwhile, LPC and others have not made such mistakes.

[grixit]

Hmm, i think i'd better start checking my glove compartment more often, just in case someone put a gun in there. Or a soviet reactor rod. Or a jar of salsa from New York City.

[Famspear]

......Or a jar of salsa from New York City.

New York City ??!!!???!!

[davids]

I have yet to see anyone else in this thread cite a statute regarding a gun possession crime where there is literally NO MENS REA element that needs to be proved by the prosecution. There may be such a statute, but no one has cited it yet.

I'm out of the office but I'll get you one later.

Bovine, with all due respect, you're barely treading water here. LPC was right on target. You made an incorrect statement, and he responded to exactly what you wrote. You then tried to argue that he was somehow mixing up different concepts. He wasn't. You are the one who made the statement, and he responded to it appropriately.

LPC is in fact an attorney with many years of experience.

You have made several mistakes in this thread. LPC has not.

IF he is an attorney with many years of experience, then he should have heard of strict liability crimes. You acknowledge they exist, at least, but he still doesn't. So that would be a "mistake" on his part.

I'll add that IF he is an attorney his surprise at the idea that mens rea would be discussed in law school is odd. It is also odd that he just couldn't seem to conceive of a situation where mens rea would even be an issue. It is also odd IF he is an attorney that he somehow misread what I provided and came to the erroneous conclusion that strict liability crimes always involved "automatic weapons." Not very lawyer-like. And if he is an attorney who is just unaware of an entire subject within the law perhaps he shouldn't be so opinionated about that subject. Just some food for thought.

I did acknowledge that the paragraph in question was not written as well as it could have been.

The crimes which he was charged with in large part had no mens rea element. The statute was quoted. It was said there is caselaw (none cited) which imports an element of mens rea at the "knowing" standard. If so, then wonderful, but again it hasn't been cited.

Even if that is the case, it is still a valid point that merely possessing a firearm, without having a mens rea that involves intending to use it in some criminal activity, may not be a valid subject for a criminal statute. Now being a libertarian republican I realize that not everyone will agree with my opinion in that regard, but having that opinion is neither sinking, swimming, or treading water. It's just a different opinion than some have about what good jurisprudence and good legislature should be.

You incorrectly "corrected" another poster on the issue of which court (federal or state) had excluded the tape recordings in the Cox case. I corrected you on that.

No, you didn't "correct" me. You cited to a newspaper article which discussed very generally the evidence issues concerning tapes. I cited to an article written by the attorney who wishes to handle the appeal and stated, in response to your newspaper article, the reasons why I will assume the attorney is not just babbling when he says there was audiotape information he wanted admitted which was not. You have made a further mistake in not reading my response and then mischaracterizing it here.

I am wondering why you are making so many mistakes in this thread.

Other than wording of one paragraph, what mistakes are those again?

[davids]

oh ye of little faith...

In California, there is a law, Penal Code 25850, which criminalizes gun possession in many instances, with no mens rea element.

linky: http://www.aroundthecapitol.com/code/ge ... 6000/25850

If for example, even as a first offense (let's say, under 25850(a)(7)), i.e., no prior gun crimes or infractions, one is carrying a gun (doesn't have to be automatic) and it is loaded, in the car or on one's person, it doesn't matter if it is there knowingly, unknowingly, intentionally...whether the possessor intends to use it for protection, is just transporting it from one place to another, wishes to sell it, or wishes to go on a Raising Arizona-esque quest for Huggies with it. Intent is not an element.

There it is.

[davids]

I am actually surprised that the concept of strict liability crimes is not better known to persons here.

No, you're not surprised. You're pretending to have a level of knowledge of the subject that you obviously do not have, and you haven't done your homework. You're barely treading water here. And you're in no position to evaluate the knowledge of the rest of us here with respect to the concept of strict liability crimes. You've made one mistake after another on the topic. Meanwhile, LPC and others have not made such mistakes.

Ok, show me where I am wrong. LPC has made one mistake after another by first insisting that strict liability crimes don't exist, then feigning amazement that mens rea could be an issue at a criminal trial, etc., etc. So, if I am evaluating anyone's knowledge it is just based upon what they are posting here. Neither LPC or you have shown that strict liability crimes don't exist, and haven't even shown that the crimes that Cox was charged with aren't strict liability.

And further, even if there is caselaw (not cited by you or anyone else in this thread) which imports a mens rea element there, the only actus reus is possession. I personally have a philosophical disagreement with that kind of criminal statute, and I'm entitled to my opinions and preferences just as you are to yours. Perhaps my biggest problem or mistake here is asking you to think about something you don't want to think about, for whatever reason.

[Famspear]

IF he is an attorney with many years of experience, then he should have heard of strict liability crimes. You acknowledge they exist, at least, but he still doesn't. So that would be a "mistake."

No, he never said he had never heard of strict liability crimes. You're trying to bob and weave, but you're not doing it effectively.

The crimes which he was charged with in large part had no mens rea element.

No, that's false. Every single crime of which he was charged and convicted had -- in large part -- a mens rea element. You don't get to define the phrase "in large part."

The statute was quoted. It was said there is caselaw (none cited) which imports an element of mens rea at the "knowing" standard. If so, then wonderful, but again it hasn't been cited.

Completely incorrect. The crimes with which Cox was charged had, in large part, a mens rea element. And yes, I cited the case law -- the Supreme Court decision in the Staples case. I gave you the citation and I quoted from the case. What's wrong with you?

....it is still a valid point that merely possessing a firearm, without having a mens rea that involves intending to use it in some criminal activity, may not be a valid subject for a criminal statute. Now being a libertarian republican I realize that not everyone will agree with my opinion in that regard, but having that opinion is neither sinking, swimming, or treading water. It's just a different opinion than some have about what good jurisprudence and good legislature should be.

Again, that's your opinion, and that's not the part that others here are having trouble with.

Other than wording of one paragraph, what mistakes are those again?

Do you want to go through this again? You falsely stated that most of the crimes for which Cox was convicted had no mens rea element. That was blatantly false. You failed to even attempt to identify even one of the counts which would NOT have a mens rea element.

Again, you have now made yet another mistake by falsely claiming that I did not provide a citation on the mens rea element. I clearly cited the Supreme Court decision (Staples) under the very statute, section 5851(d) of the Internal Revenue Code.

[davids]

IF he is an attorney with many years of experience, then he should have heard of strict liability crimes. You acknowledge they exist, at least, but he still doesn't. So that would be a "mistake."

No, he never said he had never heard of strict liability crimes. You're trying to bob and weave, but you're not doing it effectively.

He hasn't specifically said that but it is a fair interpretation. He did say this: "If what you said was wrong, and there is no such "strict liability crime," that's fine." And that was AFTER I provided him a link to the wikipedia page explaining the concept.

Look, I don't know what your beef is, strict liability crimes do exist. There is also no mens rea element in the statute you cited that he was convicted of. And even a "knowing" mens rea means "knowing" that you possess an item, and doesn't require proof of an intent to actually use it in a criminal manner. So it might as well be a strict liability crime, since it's about three quarters of the way there already.

To YOU perhaps that means it has a "mens rea" but not in the historic or classical sense that the term was used for ages and ages. A mens rea should, in MY OPINION, involve an intent to do something which is malum in se and not malum prohibitum (like having a weapon that doesn't strike the fancy of the anti-gun lobby). Merely "knowing" that you have "possession" of a firearm, when there is a Second Amendment that says the right to bear arms "shall not be infringed." And I say that as someone who doesn't even own any guns.

[wserra]

I'm coming late to this conversation; I've been really busy lately. And maybe I missed something earlier in the thread. But, from the last couple of pages, Famspear is clearly right. Even where a possession statute does not explicitly contain a mens rea element, courts read one in as a matter of due process. Famspear, moreover, is on point in citing Staples v. United States, 511 U.S. 600 (1994), in the context of weapons charges. But the idea that due process prohibits conviction of unintentional possession didn't start with Staples. See, for example, Morissette v. United States, 342 U.S. 246 (1952).

Yes, there are such things as strict liability crimes. But I would bet the farm that Cox wasn't convicted of any of them.

[AndyK]

Ladies and Gentlemen:

The ongoing urination contest has extremely little (if anything) to do with Schaeffer Cox.

So, either knock it off or all the "he-said/he-said" posts get spun off to a separate thread.

Remember, this forum's purpose is education -- NOT ego boosting.

First and final warning.

AndyK

[wserra]

Remember, this forum's purpose is education -- NOT ego boosting.

How about if I educate and boost my ego at the same time?

[davids]

Remember, this forum's purpose is education -- NOT ego boosting.

How about if I educate and boost my ego at the same time?

What if one unknowingly boosts one's ego while trying to educate?

[AndyK]

With respect to the two prior posts: Violators (knowing or not) will be sentenced to THE COMFY CHAIR

[The Observer]

Remember, this forum's purpose is education -- NOT ego boosting.

How about if I educate and boost my ego at the same time?

What if one unknowingly boosts one's ego while trying to educate?

Is there a strict liability statute that covers that?

And with that smartass remark made by me, I would point out that this conversation should be taken to e-mail if you guys want to keep contending with each other. It is has gone on to the point that challenges are being made about people's education and schooling (or lack thereof) which, in my experience, tends to be a forecast of the conversation going downhill from there. None of this, as Andyk has adroitly pointed out, really has focused on the heart of the matter in terms of Schaeffer's alleged crimes. If you have a statute or case law that points out how Schaeffer is innocent or guilty, then let us focus on that.

Please.