By any means necessary
Posted by aogSunday, 20 July 2003 at 21:42 TrackBack Ping URL
Orrin Judd cites an article by Jacob Sullum on the enforcement of the so-called “Rave Law” pushed by Senator Joe Biden. The key paragraphs is
Biden referred to an incident in Billings, Montana, on May 30, when a DEA agent brought a copy of the Illicit Drug Anti-Proliferation Act to the local Eagles Lodge. The agent warned the lodge’s manager that a fund-raising concert sponsored by the National Organization for the Reform of Marijuana Laws and Students for a Sensible Drug Policy might violate the law if anyone attending the event lit up a joint.

The law, which Biden sponsored, makes it a federal crime to “knowingly and intentionally” make a place available “for the purpose of manufacturing, distributing, or using any controlled substance.”

Mr. Judd cites this action approvingly:
The agent visited and explained precisely what actions might run afoul of the law; in what sense is that not adequate notice? And how hard is it to figure out that you can’t have a gathering for the purpose of making, using or dealing drugs?
This misses the real problem.

The first thing to note is that the agent didn’t explain the law, certainly not as written. It wasn’t a matter of the organizers “knowingly” or “intentionally” making a place available for drug use. The clear implication of the agent’s statement was undeniable that any use of illegal drugs would be prima facie evidence for the sponsors having knowingly and intentionally made the location available. That of course makes a complete mockery of the original language. I don’t think that having law enforcement able to blatantly disregard language in legal statutes is a good idea.

In the comments Judd claims that
The nature of the gathering suggests lighting up is its purpose.
I consider this specious because by this logic, any gathering that opposes a law is considered to be a knowingly effort to violate the law at that place and time. If the same logic had been applied during Prohibition then any anti-temperance gathering would have been judged a speak easy where the organizers could be arrested and bankrupted by fines. How is this not real censorship and suppression of free speech? The gathering in question was clearly targeted because of the political views of the participants. The sponsors were made legally responsible for any illegal behaviour by the attendees regardless of efforts to prevent that. I’d like to see an explanation of how, based on this, any gathering to protest or organize against Drug Prohibition would not be an unacceptable risk for the sponsors.

Note further that just the risk of arrest (not even conviction) was enough to prevent the gathering. Since the agents would suffer no penalty from false arrests, this in effect gives the DEA veto power over any public gathering. It’s bogus to argue whether that’s what the law intended - since the DEA will be making the arrests the view of the DEA is de facto regardless of anything de jure. This is a standard police state tactics, where a law may sound plausible but is enforced in a way that makes it completely arbitrary and at the discretion of the enforcing authorities (like “anti-state activities”). It’s disgusting that it’s being done in this country. I just wonder what ever happened to that phrase, “Congress shall pass no law […] abridging […] the right of the people to peaceably assemble”?

I think the key difference between Judd’s view and mine is that I view this kind of thing not as an aberration but as the inevitable result of trying to prohibit concensual activity. Since nobody involved has any interest in involving the authorities, the authorities must involve themselves through what ever means are necessary. And that last phrase explains it all.

Comments — Formatting by Textile
oj Sunday, 20 July 2003 at 22:50

You get to the key problem with your view when you arrive at “peacably assemble”. A gathering intended to protest the law, at which contempt for the law will be expressed by its violation, is not peacable. If the organizers make a serious effort to prevent such illegality they have an entirely defensible position when arrested.

Annoying Old Guy Monday, 21 July 2003 at 09:31

I fail to see on what basis you claim that the gathering in question intended to actually violate the law. Gathering to protest a law seems to me a quintessential American political act and precisely what the First Admendment is protecting.

Also, a point I tried to make is that getting arrested is of itself a very strong deterent, regardless of whether a guilty verdict results. It would certainly lead to thousands (if not tens of thousands) of dollars in legal fees, giving the DEA the power to effectively inflict fines of that magnitude on any gathering they don’t approve of, regardless of whether anything illegal occurred. It is because of the highly subjective nature of the law and the blatant disregard for some of its provisions by the DEA that makes this the case.

End of Discussion