Laws Should Be Based on Reality, Not Perception
Posted: Thursday, December 11, 2008
by Terry Mitchell
http://commenterry.blogs.com
During a discussion of the Plaxico Burress "gun firing" case with a young lady the other day, she stated that Mr. Burress could legitimately be charged with assault if others at the nightclub where his gun accidentally fired felt threatened by the situation. She reasoned that their perception of a threat would be all that would be necessary to bring assault charges against him, even if no one (other than Burress) was actually hurt during the incident. Indeed, her assertion is based on actual laws.
Let's say a man is charged with assault because someone else perceives him as a threat, perhaps because he has a gun or knife in his pocket. Okay, but what about some women who perceive all men as a threat? Should all the men they come in contact with be charged with assault? What about people who perceive all foreigners as a threat? Should all the foreigners they come in contact with be charged with assault? And what about people who perceive all gays and lesbians as a threat? Should all the gays and lesbians they come in contact with be charged with assault?
The bottom line is that people can perceive any darn thing they want. That's what makes these "paranoia" laws so silly. If any lawmaker were to argue in favor of them in my presence, I would tell him to his face that he is advocating idiotic legislation. Laws should never be based on perception; they should be based on reality – and common sense.
But some may argue that these kinds of laws are based upon what a "reasonable person" might assume. But who determines what is "reasonable"? Something that's reasonable to one person could be irrational to another. And who makes the determination about who is a "reasonable person" and who is not? Again, that's a subjective issue. That's all the more reason why laws should be based on reality and not perception.
Here's an illustration. Let's say two guys (we'll them Larry and Doug) get into an argument. As it progresses, Larry suddenly tells Doug that he's got something in the glove compartment of his car that says "you [Doug] had better run as fast as you can" and then Larry heads toward his car. Doug then calls the police and says Larry threatened him with a weapon. But did he really? That just was just his perception.
It turns out that when the police arrive, all they find in the glove compartment of Larry's car is a piece of paper with "you had better run as fast as you can" scrawled on it. So, he wasn't lying when he told Doug that he had something in his glove compartment that met that description. He had exactly that and probably hoped that his announcing it to Doug would frighten him.
However, Larry never said, "I have a weapon in my glove compartment that I'm going to use on you." Again, that's probably what he wanted Doug to think, but he never said that. I think he had a right to say what he did, without getting into trouble for it. If you don't have that right, what rights do you have? But the logic of these silly perception-based laws would probably result in Larry being hauled off to jail.
This is also the reason I oppose certain "pre-emptive" laws that punish people for things they "intend" do, even though they never threaten or attempt to do them. In my opinion, a person should never be punished for intending to do something unless or until they threaten to do it (in no uncertain terms) or actually attempt to do it. Veiled threats shouldn't count, as they can often be misunderstood (see the Larry and Doug example above). We don't need the thought police in this country.
Sure, someone may be collecting lots of fertilizer that could be used to take down a building, but that alone is not reason enough to arrest them. We don't know for sure that this is what they plan to do. If we think that's what they intend to do, then we can keep an eye on them and make sure they don't do it.
Then we had those silly laws against fake child pornography that were, thankfully, shot down by the courts. They would have – get this – punished people for producing or possessing "child pornography" that involved no real children, just fantasy images or drawings. Although this stuff does not actually hurt or exploit any child, the plan was to punish people just as if it was the real thing. Part of the rationale for these laws was the notion that the production or use of this faux child porn could cause someone to actually harm children in the future. Again, this was another attempt to write perception into the law – the perception about what a given activity might cause someone to do later.
Along those same lines, there was an item in the news several years ago about a high school boy whose girlfriend had recently broken up with him. He was angry about the breakup and, to vent his anger, wrote a fantasy story about his former girlfriend being brutally raped and killed. However, the story was meant for his own, um, "personal edification" and was never intended to be shared with anyone else or used as a way to threaten the girl.
However, to make a long story short, a friend came over to his house one day, found a copy of the story, and took it to school with him. He then shared it with the boy's former girlfriend, who then alerted school officials. Bottom line, the boy was suspended for several days for "making threats" against his former girlfriend. She perceived that she was being threatened by this young man, so he was treated accordingly. Of course, if those school officials had dealt in reality instead of perception, the friend who took the copy of the story to school would have been the one who was punished – for stealing and deliberately inciting discord.
One can only hope that logic and rational thinking will one day be the driving force behind the creation of laws and that hysteria, paranoia, and knee-jerk reactions will finally be deposited in the trash heap of history.
This Article has been viewed 177 times. (Not updated in real-time.)
Top-level comments on this article: (2 total)Terry,Kind of looks like you still have this second amendment axe to grind? You are still going to hold up this moron, Plaxico Burress, as your role-model for gun-toting libertarian views? You keep talking about people who "have their head up their butt?" How about Plaxico Burress, who obviously missed a gun safety class when he brought a loaded weapon into a crowded nightclub and let it fire into the VIP section after having a few drinks? How about missing Sunday school when he told the police that he was dining at Applebee's and he used an alias of John Harris at the hospital as his friend confiscated the weapon for him? How does this fit in with your objective view of right and wrong, including lieing? Then you use silly analogies to explain away your opponents through what you call subjective perception. I thought Christians like you didn't believe in things being relative - but, very black and white. Now, how does your perception of threat fit in with this reality? What do you think of zero tolerance for weapons or verbal threats in schools? If Johnny brings a loaded revolver to the schoolhouse, but says he doesn't plan on using it, should we turn our back and let him off the hook? What if a kid goes to school and tells a friend that he plans on staging a school shooting and then denies it to school personnel? Is that of any concern? What about a kid who gets on a website and talks to his friends about weaponry and makes mention of liking to rub out a classmate all in fun? What if he mentions every conceivable weapon as he talks with his friends online? In your way of thinking, I guess that all of this is in the mind of the beholder? The issue mentioned above actually happened to a child patient of mine as he was being monitored by the police because of his over-the-top obsessive behavior. Terry, I believe that you are just like that child. Angry, and pushing an issue and justifying it at all costs - give it up!James, I didn't say Burress wasn't stupid nor did I condone his lying (in fact, I wasn't even aware of that part of story). He should indeed have to face some consequences -- such as a fine and/or community service -- for his stupid and reckless behavior. Perhaps he should be required to go around making people aware of firearm safety. But he is not the monster that you and other gun-hating elitists and media pontificators want to make him out to be. He did not threaten anyone or fire the gun on purpose. It was certainly not his intention to hurt anyone. Which part of accident do you not seem to understand? There was no criminal intent (in regard to the firing of the gun), he is not a felon, and he certainly doesn't deserve prison time.It sounds to me like you harbor hostility to both the First and Second Amendments. I believe in both of them, even if it might make life a little less comfortable and safe. To paraphrase one of our Founding Fathers, anyone who is willing to give up some of his precious freedom in exchange for a little more safety is deserving of neither freedom nor safety.Thanks for commenting anyway.By the way, James, I am neither angry nor obsessed over the gun issue. If you are some kind of psychoanalyst or counselor, then you are not a very good one. Or perhaps you have read very little of my work. I'll give you the benefit of the doubt and assume the latter.Since I like to deal in facts, I'll throw out a few.Fact: I do not own a gun nor do I ever intend to own one.Fact: I am not a member of the NRA.Fact: I have often clashed with people who take their love of guns to ridiculous levels, such as those who claim that guns save lives. Of course, they are the same people who rightly acknowledge that guns don't kill people, people do. However, if guns can't kill people, they can't save anyone either. They can't have it both ways. It sounds to me like they have a little consistency problem. And if guns save lives, then sex prevents AIDS.Fact: I did not vote for John McCain and Sarah Palin.Fact: One of the things I am obsessed about is the U.S. Constitution (as it was originally intended). I get so tired of government and individuals limiting, explaining away, marginalizing, or otherwise ignoring rights that were expressly enumerated in this great document, while reading into it and emphasizing made up "rights" that were never intended.Fact: I know who I am, what I believe, and what I'm all about. I can't be manipulated or influenced like some of your young "patients" can. So give it up.
Terry,The judiciary branch does acknowledge the ambiguity of reasonableness. The legal definition of a reasonable person is: 1. an ordinary person who uses reasonable care to avoid injuring others. 2. An ordinary person who is not unduly sensitiveAnd the definition is stretched to further include characteristics and actions based on a breach of duty equation that includes: 1. danger/caution hypothesism = the greater the danger, the greater the caution needed 2.Forseeability = dependent upon multiple situational variables 3. burden or inconvenience in taking the precautions vs the greater the damage 4. Importance or Social Utility vs risk/benefit analysis 4. objective and subjective standards involving physical and mental characteristics ( deafness, blindness or other handicaps, mental impairment not due to intoxication, customs ( what others usually do), special skills ( physician, police officer, etc..)and all other kinds of factors that can be used to determine reasonableness.Obviously, this right is one that you are passionate about,i.e. right to bear arms. It isn't one to me really. But I still love you anyway..lolJennifer, you're already starting to write like a lawyer. :-)
We want your comments! If you can read this, you don't have javascript enabled, so you can't use this comment system. Please enable javascript.