Stealing Your Life Away: The Threat of Civil Asset Forfeiture

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Children are among the best property rights advocates on the entire planet. If another child, or even an adult, tries to seize their toys, the usual rebuttal is to loudly declare, “Mine!” What we can learn from our youngest citizens is that legitimate property acquisition and titling is intrinsic to the preservation of human liberty, for without it, the rational allocation of scare resources cannot occur, thereby cultivating a breeding ground for unmitigated thievery.

 

 

Civil asset forfeiture, simply put, is legalized exaction. Based upon the medieval English legal concept of the deodand, the assumption here is that inanimate objects are capable of moral agency, and as such are held to be culpable if used in the commission of what the State considers to be a crime. As I’ve written about before, the deodand was forfeited to the sovereign via an in rem proceeding by the Exchequer on behalf of the Crown. Unlike a proceeding conducted in personam where fundamental protections on behalf of the defendant are in play, the deodand has no rights, and therefore it is presumed to be “tainted” and worthy of punishment by the judge. Ironically, its owner is the one who is being truly punished, and with little recourse, if any, to any legal remedy or restitution; in essence, the owner is treated almost as if he were an outlaw.

The real danger posed by civil forfeiture, though, is that unlike criminal forfeiture, the government is not required to arrest and charge you for committing an offense, much less convict you for a violation of their law in order to seize your property outright. Usual constitutional safeguards such as search warrants, cross-examination, assistance of counsel, and most importantly, a speedy and public trial by an impartial jury, are applicable only to human defendants, not inanimate defendants; therefore, civil forfeiture provides a way for the government to do an end run around the several American constitutions. At this point, civil forfeitures are little different from the so-called “writs of assistance” that aggrieved colonial America enough to fight for her independence from the British Empire.

Much like fractional reserve lending, the term “civil asset forfeiture” is little other than a semantic relabeling of one method used by government to engage in legalized property theft. Tina Bennis lost her van because her husband consorted with a prostitute in it, yet, according to the United States Supreme Court, the forfeiture, despite her “equitable interest” in the van, did not violate the Fifth Amendment’s Takings Clause. George Reby initially lost $22,000 in cash because Monterey police officer Larry Bates suspected that it could have been used to facilitate illicit narcotics trafficking; fortunately for Reby, he eventually received a check for the same amount of cash he lost. Dale Agostini lost both his unspecified amount of cash and his infant son to Tenaha police officer Barry Washington; during his overnight incarceration, Agostini asked district attorney Lynda Russell if he could kiss his son goodbye, to which she answered that he should kiss her instead. Russ Caswell almost lost his budget motel to the federal government on false allegations that he was negligently complicit in the illicit narcotics activities that were taking place in the rooms he rented out. Zaher El-Ali lost his Chevrolet Silverado because the man to whom he lent his pickup truck was arrested for driving intoxicated; interestingly, in a rare admission from the government, the dissenting minority of the Texas Supreme Court pointed out that civil forfeiture directly victimizes innocent property owners.

Several think tank reports have been publicly issued describing the perverse financial incentives motivating the American gendarmerie to steal from the citizenry as much as they can by way of civil forfeiture. The Institute for Justice (IJ) published in March of 2010 that it is common for police departments nationwide to pad their budgets extra-legislatively from the sales of civilly forfeited property. Later that year in November, IJ published a report focusing on how Texan police agencies retain up to 90% of the proceeds from forfeited property, which between 2001 – 2007, amounted to at least $280,000,000 that was garnered from 35,000 pieces of real property, excluding cash. IJ subsequently published in October of 2011 their findings that through the “equitable sharing” agreements with the federal government, several state law enforcement agencies were receiving noticeably high kickbacks from the civil forfeitures they participated in alongside federal law enforcement agencies. This, more than anything, is why civil asset forfeiture has been referred to more colloquially as “policing for profit.”

Touted much by congresscritters John Conyers and the late Henry Hyde, the Civil Asset Forfeiture Reform Act of 2000 (CAFRA) did little to significantly alter the practice of civil forfeiture itself by the federal government. Although CAFRA did increase the federal government’s burden of proof from probable cause to a preponderance of the evidence, provided assistance of counsel for indigent owners who lost their homes, and eliminated the cost bond requirement, neither does CAFRA clearly explain what is needed to perform a satisfactory innocent owner defense (which was not available to Bennis in 1996, but what was crucial to Caswell keeping his business earlier this year), nor does CAFRA halt the externalization of a public good’s cost. I suspect that, exceptions notwithstanding, the reason why most mainline libertarians refuse to publicly discuss civil forfeiture is because the failure of CAFRA to stop the political corruption would also imply a systematic failure of all techniques that rely on working within the system in order to change it for the better, whether that be electoral voting or filming cops.

Statutory codes provide the legal foundation for the police’s use of civil forfeiture. 18 USC §§ 981, 984, & 985 say in part, respectively, that:

 

“The following property is subject to forfeiture to the United States…All assets, foreign or domestic – of any individual, entity, or organization engaged in planning or perpetrating any Federal crime of terrorism against the United States, citizens or residents of the United States, or their property, and all assets, foreign or domestic, affording any person of influence over any such entity or organization.”

“In any forfeiture action in rem in which the subject property is cash, monetary instruments in bearer form, funds deposited in an account in a financial institution, or precious metals – it shall not be necessary for the Government to identify the specific property involved in the offense that is the basis for the forfeiture.”

“Notwithstanding any other provision of law, all civil forfeitures of real property and interests in real property shall proceed as judicial forfeitures.”

 

Other provisions within this chapter also mentioned the suspicion of illicit narcotics trafficking and money laundering as grounds for civil forfeiture, yet, in light of the fact that 97% of all cash within the M1 money supply is tainted by cocaine, these forfeiture statutes could be construed as being so broad as to potentially satisfy probable cause, or even a preponderance of the evidence, that nearly all cash in circulation is liable to be civilly forfeited! Similarly, Art. 59.02(a), 59.02(c), & 59.07 of the Texas Code of Criminal Procedure say, respectively, that:

 

“Property that is contraband is subject to seizure and forfeiture under this chapter.”

“An owner or interest holder’s interest in property may not be forfeited under this chapter if the owner or interest holder proves by a preponderance of the evidence that the owner or interest holder acquired and perfect the interest…”

“This chapter does not impose any additional liability on any authorized state, county, or municipal officer engaged in the lawful performance of the officer’s duties.”

 

In other words, the definition of “contraband” under Art. 59.01(2) is so broad as to constitute both real and fungible property allegedly used in the commission of a wide variety of crimes that you could literally lose everything you own in the blink of an eye. Not only that, but because civil forfeiture is perfectly legal, accusations of officers acting under color of law when they pocket a huge percentage of the proceeds from the sale of your forfeited property is legally incorrect.

Despite the statutory legality of civil forfeiture, it is incompatible with constitutionally guaranteed safeguards. The ability of the police to keep any of the proceeds from the sale of forfeited property allows them to sidestep the legislative power of the purse to decide on appropriations of money to the rest of the government, thereby rendering them a self-funding, and therefore, unaccountable entity of government. Art. I § 9 cl. 6 of the United States Constitution says:

 

“No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.”

 

Interestingly, Art. III § 49a(b) of the 1876 Texas Constitution says, in part:

 

“Except in the case of emergency and imperative public necessity and with a four-fifths vote of the total membership of each House, no appropriation in excess of the cash and anticipated revenue of the funds from which such appropriation is to be made shall be valid.”

 

As you can see, when you factor in both constitutional clauses, what you have is a situation whereby “equitable sharing” is used to do an end run around both Congress and the Tenth Amendment. In fact, the MJTF drug interdiction unit, South Florida Impact, has bragged that they laundered money in order to attract money launderers (much like how reverse stings work) on a ratio of one-to-one, and then using those profits to self-finance themselves completely. At this juncture, the only difference whether or not state, county, or municipal police use “equitable sharing” with the federal government is to determine which organized criminal gang receives a greater share of the loot.

To top it all off with the federal government, the Seventh Amendment guarantee to a jury trial in a civil case is unavailable in an in rem proceeding because juries are limited to in personam trials, and the Eighth Amendment guarantee against excessive fines is not a surefire defense in federal court. I say this because in light of their refusal to establish a yardstick in order to gauge what is constitutionally excessive (despite their 1993 ruling in Austin v. United States where civil forfeiture was ruled to be subject to the limits of the Excessive Fines Clause), the federal judiciary dodges adjudicating on the matter since they prefer to adhere to their constitutional avoidance doctrine. This is why I surmise that they would prefer to judge the merits of a case on something like the statutory innocent owner defense, rather than on fundamentally constitutional grounds.

One unusually pernicious aspect of civil forfeiture is how it socially engineers people to tacitly accept the cashless society. As police thug Larry Bates told the media about why he seized George Reby’s $22,000 in cash:

 

“The safest place to put your money if it’s legitimate is in a bank account. He stated he had two. I would put it in a bank account. It draws interest and it’s safer.”

 

Obviously, a cashless society makes it very easy to pull off the implementation of a mass surveillance police state apparatus. As the chairman of Signature Bank described the relationship between civil forfeiture and the cashless society:

 

“To provide another example, the U.S. government is becoming very fond of seizing money from citizens first and asking questions later via ‘civil forfeiture.’ Amazingly, the government is permitted by law to do this even if it is only government staff members who have a suspicion, not proof, of wrongdoing. By seizing a citizen’s or a firm’s money, the victim/defendant has almost no choice but to settle. A case about civil forfeiture was recently argued in front of the Supreme Court in which the government seized all the money of a tiny family-owned grocery store on the suspicion that it was laundering cash because its cash deposits were below the $10,000 level, an occurrence that triggers a report to the government. By depriving companies and individuals of the cash to defend themselves, even innocent firms are under immense pressure to settle or to plead guilty. To make matters worse, the dramatic consolidation of the banking system has made it easier for the government to acquire information as there are fewer access points. For example, JPMorgan, one of America’s largest and most powerful banks, is the size of more than 3,000 smaller banks combined, and the top four U.S. banks control about 60 percent of the U.S. banking deposits.”

 

What Scott Shay was referring to here is that federal prosecutors alleged that the sheer amount of cash was prima facie evidence of money laundering, which they suggested indicated the use of so-called “structuring,” which is supposedly used to avoid generating a currency transaction report, as required by the Bank Secrecy Act. Although the carrying of cash itself is perfectly legal, carrying too much cash would be grounds for a police officer to civilly forfeit it, if he decides that there is sufficient probable cause or a preponderance of the evidence that it was used for either drug trafficking, money laundering, or “terrorism.”

Lysander Spooner once provided quite an apt way to think of civil forfeiture, since it had been used before in admiralty cases where the ship’s owner was not a Citizen of any of the States, and since such an owner was not an American, the federal judiciary explained in 1796 that due to the legal fiction, civilly forfeited ships were not entitled to jury trials. In his Analogy of the Highwayman, Spooner said:

 

“The government does not, indeed, waylay a man in a lonely place, spring upon him from the road side, and, holding a pistol to his head, proceed to rifle his pockets…[t]he highwayman takes solely upon himself the responsibility, danger, and crime of his own act. He does not pretend that he has any rightful claim to your money, or that he intends to use it for your own benefit. He does not pretend to be anything but a robber. He has not acquired impudence enough to profess to be merely a ‘protector,’ and that he takes men’s money against their will, merely to enable him to ‘protect’ those infatuated travellers, who feel perfectly able to protect themselves, or do not appreciate his peculiar system of protection. He is too sensible a man to make such professions as these. Furthermore, having taken your money, he leaves you, as you wish him to do. He does not persist in following you on the road, against your will; assuming to be your rightful ‘sovereign,’ on account of the ‘protection’ he affords you. He does not keep ‘protecting’ you, by commanding you to bow down and serve him; by requiring you to do this, and forbidding you to do that; by robbing you of more money as often as he finds it for his interest or pleasure to do so; and by branding you a rebel, a traitor, and an enemy to your country, and shooting you down without mercy, if you dispute his authority, or resist his demands. He is too much of a gentleman to be guilty of such impostures, and insults, and villanies as these. In short, he does not, in addition to robbing you, attempt to make you either his dupe or his slave.” [emphasis added]

 

I can’t fathom a better explanation of what is truly happening with this unmitigated power of government. Much like its power of taxation, the government must first confiscate your property, under a coercive threat of initiatory violence, before it can afford you any sort of legal protection for your property, and this arrangement is assumed to be tacitly consented to by the social contract implied in the reciprocal obligations mentioned in Minor v. Happersett, 88 U.S. 162 (1874). Needless to say, the thievery inherent in all taxation is more clearly demonstrated by the systematic abuse civil forfeiture inflicts upon its hapless victims who, more often than not, suffer the roadside exaction with no legal remedy available to them once the police cunningly coerce them into “forfeiture agreements” whereby a refusal to sign would incur criminal charges lest they give their property up in exchange for their freedom.

There have been two major “solutions” proposed that would supposedly solve the problem of civil asset forfeiture by tweaking it to death, and which I believe are nothing more than false hopes. The first of these is that if legislation could be passed to reform the statutes detailing the practice of civil forfeiture, then our property rights can be secured again. This is impossible to do because no legislature has any incentive to repeal or even amend the civil forfeiture laws in any real way, unless you count the dog-and-pony show of transparency they put on about the proceeds from the forfeited properties. Similarly, the fairly moderate “solution” of transferring the civilly forfeited property to any American government’s general revenue fund only removes the direct incentive for the police to steal property, but not the government’s indirect incentive to benefit from the stolen proceeds as it sees fit; the only difference, at most, is which group of thieves gets to decide how to parcel out the loot. Moral hazard, much?

Another major proposed “solution” is for citizens to use their historical power of jury nullification to stop civil forfeiture. For nuanced reasons I have written about recently, it is very unwise to rely solely on a jury to nullify these unjust civil forfeiture laws; of course, it is still an open question as to whether a state citizen stands a better chance of having a jury nullify these civil forfeiture laws rather than a United States citizen, yet, such would require a clean test case that is not likely to occur anytime soon. In light of the incentives motivating jurors to convict right from the outset, such an indication does not bode well for the said “nullification” of these tyrannical laws.

What can be done, though, to at least mitigate the harm caused by the government’s use of civil forfeiture? As the old adage goes, “an ounce of prevention is worth a pound of cure,” and to that end, there are two methods I’ve gleaned from all of the case studies I’ve read that implicitly suggest how citizens can discourage law enforcement from stealing their property. The first of these is to roleplay police interrogations so you can learn how to handle yourself when an officer is (presumably) conducting an investigation of some kind, even if it’s just a traffic stop. Not telling the cops that you have a large stash of cash in your car is, I hate to say it, a rather common sense measure that seems to have fled the minds of those who were victimized by way of civil forfeiture.

Related to this, is to never consent to a search by politely, yet firmly, informing the officer of your objection. Although it is not a guarantee that the officer won’t conduct a warrantless search anyway, your verbal protest could (arguably) be used as the grounds for a motion to suppress evidence in court because the officer’s search was actually illegal; obviously, if the judge chose to suppress such evidence, then presumably the only logical result would be for the forfeiture action to be dismissed and your property returned to you immediately. Ideally, though, such an illegal search should not turn up anything anyway, if you were competent in hiding your valuables in the first place, which none of the forfeiture victims obviously were. Books by Michael Connor, Jack Luger, or even Dennis Fiery can teach you the principles (and a few techniques) about how to hide your valuables effectively so the police can’t steal what they can’t find, so you can hopefully avoid going to court altogether.

In terms of legal representation, your options are pretty limited, to tell the truth. One option would be to be place a lawyer on retainer, but if you do, don’t shell out anymore than $2,000 just for the retainer (which you might want to consider effectively the same as a cost bond). A lower cost option would be to hire a paralegal who is willing to do some part-time freelance work for you; this is doable provided that you don’t solicit the paralegal for “legal advice.” If you are indigent, as most civil forfeiture victims are reduced to, then seek out pro bono legal representation from IJ or even from the recommended lawyers list as provided by Forfeiture Endangers American’s Rights (FEAR). As a last resort, if you must go pro se, then you should buy FEAR’s Asset Forfeiture Defense Manual for ~ $120.

Regarding legal defenses, there are two methods that remain virtually undiscussed in the published literature from both IJ and FEAR. Gary Hunt once put forward an oral demand for habeas corpus in court by saying:

 

“I object to these proceedings. I am the moving party today, and I am the plaintiff and I set forth a demand for Habeas Corpus for the record. I cannot find an injured party to summon for trial and I want an order for the Sheriff to bring the injured party before the court. I need an order from the court to tell the Sheriff to bring forth the injured party. If this charge is criminal then the injured party must present himself with a sworn statement of the injury. If the nature is civil, then the original contract to which I am alleged to be a party to and have violated must be brought forward.”

 

As could be expected, the judge threatened him with contempt of court multiple times, but when Hunt asked the judge if he was unilaterally suspending habeas corpus, the judge encouraged the prosecutor to nolle prosse the case. Whether this would work in a civil forfeiture proceeding would, again, require a clean test case. The other method that hypothetically could work would be Karl Lentz’s two-sentence defense he uses in court:

 

“I require the immediate restoration of my property. I require you to restore property immediately.”

 

Lentz justifies the use of this defense as being integral to what he considers the primary purpose of government to be:

 

“Since civilization began, governments were created to secure and protect the property of man. That’s all they do; that’s mission statement one…we’re going to assign certain duties to people, and people are going to agree to certain roles, and all we’re basically getting together for is to protect and secure each other’s property from a hostile invader. That’s all we do; that’s all governments do.”

 

Obviously, Lentz’s justification for the existence of the State necessarily butts heads with Spooner’s arguments in favor of its irrevocable abolition, yet what I am presenting here are potential avenues for legal defense should you or someone you care about fall victim to a civil forfeiture action.

One area of the whole civil asset forfeiture mess that is seldom addressed are the government auctions themselves. Similar to how Julian Heicklen got harassed on numerous occasions just for simply handing out FIJA leaflets, Judy Osburn and her fellow sign wavers were targeted by the auction staff who then subsequently called in an officer, and who in turn eventually capitulated to her that her street actions were legally sound. Going beyond this though, why hasn’t anyone (presumably) thought of a mutual aid approach towards civil forfeiture? Specifically, why not form a friendly society whose sole purpose it is to buy back the forfeited property with the explicit goal of promptly returning it to its rightful owners? There is no reason why these grassroots auction “buybacks” could not also be accompanied by leafleting FEAR literature simultaneously.

Civil forfeiture is maybe the number one best reason to take your personal privacy very seriously, for it is impossible for the police to seize what they can’t find. The skill set one would need to prevent being targeted for civil forfeiture would be akin to what some have called the vonu strategy. Tactics include prepositioning your assets, emotionally detaching from your possessions, caching supplies, dumpster diving, archiving records, and paper-tripping. Stockpiling 5 years worth of food storage doesn’t make much sense if the cops can just swoop in and shamelessly steal all of it in the blink of an eye; however, if you are already litigating a forfeiture in court, then the skill set of a state citizen is what you would need to rely on instead. Needless to say, each of these avenues require further research in order to better comprehend and use them.

If there were anything to be learned from the government’s highly abusive and corrupt use of civil forfeiture, it would be to diversify, diversify, diversify. Most people own one home, one car, and one bank account, yet, imagine if those same people had two or three of those things? Sure, this would presumably necessitate a lower standard of living (say, two or three crappy sedans instead of just the one Mercedes), but unless the police are willing to go after absolutely everything you legally own, this would serve as an automatic disincentive for them; of course, if you were able to successful go on a paper-trip, then owning those additional properties in other names would give you even greater protection, assuming that the police were not able to draw any connections between them.

Interestingly enough, civil forfeiture is a unique political issue because it presents a rare opportunity for an indirect strategic application of guerrilla warfare principles. For instance, thanks to the judicially approved reliance on anonymous tips, it’s only a matter of time until such a method is used against a random politician; and the best part is, he doesn’t even need to be arrested in order for his cash, automobile, or even home to be forfeited to the government. Obviously, certain precautions would necessarily need to be taken, but arguably, your average Burn Notice viewer could pull something like that off without too much of a hassle, assuming they don’t give the police a reason to crack down on them.

Concluding as I have about the effects and implications of civil asset forfeiture, there is no reason to believe that due process actually matters. Despite all the flowery rhetoric you may hear, there is no such thing as fair or equitable treatment when it is your property that is being civilly forfeited. Law enforcement, especially county sheriffs, might as well be the Sheriff of Nottingham, because they work for the King (that is, the United States, or any of its de facto provinces). Civil forfeiture is just as legal as a ticket citation for “speeding,” and perhaps the worst part about it is that it empirically demonstrates that your property rights are not respected by the government at all; ergo, such “civil liberties” are just an illusion that the State must perpetuate about itself that it is somehow serving some useful function to us. Anarchists who prefer to “starve the State” rather than smashing it into oblivion are also failing to take civil forfeiture into account as “a necessary budgetary supplement” for the several American governments.

Likely worse are the psychological effects such knowledge of civil forfeiture can have on your psyche. Knowing that the government absolutely does not respect your natural property rights can take quite an emotional toll, but at some point, you just have to move past it and take action (such as those options I’ve already outlined), if for no other reason that for your peace of mind. This is why I believe it is essential to also explore, even if only tentatively, some other options for dealing with civil forfeiture that go beyond what IJ and FEAR were willing to publish in their respective bodies of literature.

Property rights are integral to a truly free society. As Ed Bear told his parallel universe counterpart Win Bear at Mr. Meep’s Spanish Hideaway:

 

“Win, we simply don’t tolerate a parasite that takes half your income and then builds more taxes into everything you buy! You people have been trying to get by on a quarter of your productive capacity – an eighth, when you count of the costs of regulation – while the State eats up the rest! It’s a wonder you’ve survived at all!”

 

It is certainly a wonder why any humans have been able to survive the onslaught of the State as long as it has been around. Government is a negative externality, and this can be evidenced as recently as by the latest IJ report published earlier this month on how an economics experiment proved that the American gendarmerie are directly incentivized by the civil forfeiture statutes to legally steal as much property from the citizenry as humanly possible. Until people are willing to recognize that nothing less than the total and irrevocable abolition of civil asset forfeiture will begin the very slow process of securing our property rights again, then the rampant thievery will continue unabated, but only as long as we allow it to, with the operative question being, of course, for how long?

Due Process “Legally” Defined

The following definitions for “due process” are taken from Ballantine’s Law Dictionary (3rd edition), Bouvier’s Law Dictionary (6th edition), & Black’s Law Dictionary (2nd edition):

 

 

(Ballantine’s)

DUE PROCESS

See due process of law.

 

DUE PROCESS OF LAW

A phrase impossible of precise definition; one which asserts a fundamental principle of justice rather than a specific rule of law [16 AM J2d Const L § 545]. Law in the regular course of administration through courts of justice according to those rules and forms which have been established for the protection of private rights [Endicott-Johnson Corp. v Smith, 266 US 291, 69 L Ed 293, 45 S Ct 63].

“Due process of law” implies and comprehends the administration of laws equally applicable to all under established rules which do not violate fundamental principles of private rights, and in a competent tribunal possessing jurisdiction of the cause and proceeding by hearing upon notice [State ex rel. Sweezer v Green, 360 Mo 1249, 232 SW2d 897, 24 ALR2d 340]. “Due process of law” requires in each case an evaluation based on a disinterested inquiry pursued in the spirit of science, on a balanced order of facts exactly and fairly stated, on the detached consideration of conflicting claims, and on a judgment not ad hoc and episodic but duly mindful of reconciling the needs both of continuity and of chance in any progressive society [Rochin v California 342 US 165, 96 L Ed 183, 72 S Ct 205, 25 ALR2d 1396].

Once of the most famous and perhaps the most often quoted definition of “due process of law” is that given by Daniel Webster in his argument in the Dartmouth College case [Dartmouth College v. Woodward (US) 4 Wheat 518, 4 L Ed 629], wherein he declared that by due process of law is meant “the law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial.”

See day in court; deprivation without due process; hearing; law of the land; life, liberty, and property; life, liberty, and the pursuit of happiness.

 

(Bouvier’s)

DUE

  1. What ought to be paid; what may be demanded. It differs from owing in this, that, sometimes, what is owing is not due; a note, payable thirty days after date, is owing immediately after it is delivered to the payee, but it is not due until the thirty days have elapsed.
  2. Bills of exchange, and promissory notes, are not, due until the end of the three days of grace, (q.v.) unless the last of these days happen to fall on a Sunday, or other holyday, when it becomes due on the Saturday before, and not on the Monday following [Story, P.N. 440; 1 Bell’s Com. 410 Story on Bills, 283; 2 Hill, N.Y.R. 587; 2 Applet. R. 264]
  3. Due also signifies just or proper; as, a due presentment, and demand of payment, must be made [See 4 Rawle, 307; 3 Leigh, 389; 3 Cranch, 300].

 

 

(Black’s)

DUE

  1. Just; proper; regular; lawful; sufficient; as in the phrases “due care,” “due process of law,” “due notice.”
  2. Owing; payable; justly owed. That which one contracts to pay or perform to another; what which law or justice requires to be paid or done.
  3. Owed or owing, as distinguished from payable. A debt is often said to be due from a person where he is the party owing it, or primarily bound to pay, whether the time for payment has or has not arrived.
  4. A bill or note is commonly said to be due when the time for payment of it has arrived.
  • The word “due” always imports a fixed and settled obligation or liability, but with reference to the time for its payment there is considerable ambiguity in the use of the term, as will appear from the foregoing definitions, the precise signification being determined in each case from the context. It may mean that the debt or claim in question is now (presently or immediately) matured and enforceable, or that it matured at some time in the past and yet remains unsatisfied, or that it is fixed and certain but the day appointed for its payment has not yet arrived. But commonly, and in the absence of any qualifying expressions, the word “due” is restricted to the first of these meanings, the second being expressed by the term “overdue,” and the third by the word “payable.” [see Feeser v; Feeser, 93 Md. 716, 50 Atl. 406; Ames v. Ames, 128 Mass. 277; Van Hook v. Walton, 28 Tex. 75; Leggett v. Bank, 24 N. Y. 286; Scudder v. Scudder, 10 N.J. Law 345; Barnes v. Arnold, 45 App. Div. 314, 61 N. Y. Supp. 85; Yocum v. Allen, 58 Ohio St. 280, 50 N. E. 909; Gies v. Bechtner, 12 Minn. 284 (Gil. 183); Marstiller v. Ward, 52 W. Va. 74, 43 S. E. 178].
  • Due care: just, proper, and sufficient care, so far as the circumstances demand it; the absence of negligence. This term, as usually understood in cases where the gist of the action is the defendant’s negligence, implies not only that a party has not been negligent or careless, but that he has been guilty of no violation of law in relation to the subject-matter or transaction which constitutes the course of action. Evidence that a party is guilty of a violation of law supports the issue of a want of proper care; nor can it be doubted that in these and similar actions the averment in the declaration of the use of due care, and the denial of it in the answer, properly and distinctly put in issue the legality of the conduct of the part as contributing to the accident or injury which forms the groundwork of the action. No specific averment of the particular unlawful act which caused or contributed to produce the result complained of should, in such cases, be deemed necessary [See Ryan v. Bristol, 63 Conn. 26, 27 Atl. 309; Paden v. Van Blarcom, 100 Mo. App. 185, 74 S.W. 124; Joyner v. Railway Co., 26 S.C. 49, 1 S.E. 52; Nicholas v. Peck, 21 R.I. 404, 43 Atl. 1038; Railroad Co. v. Yorty, 158 Ill. 321, 42 N.E. 64; Schmidt v. Sinnott, 103 Ill. 165; Butterfield v. Western R. Corp., 10 Allen (Mass.) 532, 87 Am. Dec. 678; Jones v. Andover, 10 Allen (Mass.) 20]/
  • Due course of law: this phrase is synonymous with “due process of law,” or “the law of the land,” and the general definition thereof is “law in its regular course of administration through courts of justice;” and, while not always necessarily confined to judicial proceedings, yet these words have such a signification, when used to designate the kind of an eviction, or ouster, from real estate by which a party is dispossessed, as to preclude thereunder proof of a constructive eviction resulting from the purchase of a paramount title when hostilely asserted by the party holding it [see Alder v. Whitbeck, 44 Ohio St. 569, 9 N.E. 672; In re Dorsey, 7 Port. (Ala.) 404; Backus v. Shipherd, 11 Wend. (N.Y.) 635; Dwight v. Williams, 8 Fed. Cas. 187].
  • Due notice: no fixed rules can be established as to what shall constitute “due notice.” “Due” is a relative term, and must be applied to each case in the exercise of the discretion of the court in view of the particular circumstances [Lawrence v. Bowman, 1 McAll. 420, 15 Fed. Cas. 21; Slattery v. Doyle, 180 Mass. 27, 61 N.E. 264; Wilde v. Wilde, 2 Nev. 306].
  • Due process of law: law in its regular course of administration through courts of justice [3 Story, Const. 264, 661]. “Due process of law in each particular case means such an exercise of the powers of the government as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs.” [Cooley, Const. Lim. 441]. Whatever difficulty may be experienced in giving to those terms a definition which will embrace every permissible exertion of power affecting private rights, and exclude such as is forbidden, there can be no doubt of their meaning when applied to judicial proceedings. They mean a course of legal proceedings according to those rules and principles which have been established in our systems of jurisprudence for the enforcement and protection of private rights. To give such proceedings any validity, there must be a tribunal competent by its constitution – that is, by the law of its creation – to pass upon the subject-matter of the suit; and, if that involves merely a determination of the personal liability of the defendant, he must be brought within its jurisdiction by service of the process within the state, or his voluntary appearance [Pennoyer v. Neff, 95 U.S. 733, 24 L. Ed. 565]. Due process of law implies the right of the person affected thereby to be present before the tribunal which pronounces judgment upon the question of life, liberty, or property, in its most comprehensive sense; to be heard, by testimony or otherwise, and to have the right of controverting, by proof, every material fact which bears on the question of right in the matter involved. If any question of fact or liability be conclusively presumed against him, this is not due process of law [Zeigler v. Railroad Co., 58 Ala. 599]. These phrases in the constitution do not mean the general body of the law, common and statute, as it was at the time the constitution took effect; for that would seem to deny the right of the legislature to amend or repeal the law. They refer to certain fundamental rights, which that system of jurisprudence, of which ours is derivative, has always recognized [Brown v. Levee Com’rs. 50 Miss. 468]. “Due process of law,” as used in the constitution, cannot mean less than a prosecution or suit instituted and conducted according to the prescribed forms and solemnities for ascertaining guilt, or determining the title to property [Embury v. Conner, 3 N.Y. 511, 517, 53 Am. Dec. 325; Taylor v. Porter, 4 Hill (N.Y.) 140, 40 Am. Dex. 274; Burch v. Newbury, 10 N.Y. 374, 397; and see, generally, Davidson v. New Orleans, 96 U.S. 104, 24 L. Ed. 616; Adler v. Whitbeck, 44 Ohio St. 539; Duncan v. Missouri, 152 U.S. 377, 14 Sup. Ct. 571, 38 L. Ed. 485; Cantini v. Tillman (C.C.) 54 Fed. 975; Griffin v. Mixon, 38 Miss. 458; East Kingston v. Towle, 48 N.H. 57, 97 Am. Dec. 575, 2 Am. Rep. 174; Hallenbeck v. Hahn, 2 Neb. 377; Stuart v. Palmer, 74 N.Y. 191, 30 Am. Rep. 289; Bailey v. People, 190 Ills. 28, 60 N.E. 98, 54 L.R.A. 838, 83 Am. St. Rep. 116; Eames v. Savage, 77 Me. 221, 52 Am. Rep. 751; Brown v. New Jersey, 175 U.S. 172, 20 Sup. Ct. 77, 44 L. Ed. 119; Hagar v. Reclamation Dist., 111 U.S. 701, 4 Sup. Ct. 663, 28 L. Ed. 569; Wynehamer v. People, 13 N.Y. 395; State v. Beswick, 13 R.I. 211, 43 Am. Rep. 26; In re Rosser, 101 Fed. 567, 41 C.C.A. 497].

Jury Nullification Does Not Work

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Since time immemorial, juries have been what some have referred to as the “palladium of liberty” against tyrannical government. Long before the ratification of the United States Constitution in the late 1780s, jurors had the ability to not only be finders of fact, but also as judges of the law itself, especially as applied to a particular defendant on trial; it was the intention of the Founders that such jury nullification would act as a legal method with which to bloodlessly resist tyrants. Unfortunately, this peculiarly unique veto suffers not only from the government’s secrecy about its very existence as a recognized legal doctrine, but also from the human frailty in the willingness to exercise it, both of which deeply challenge its modern efficacy in short-circuiting the cyclical theory of history.

 

 

When learning about the historicity of jury nullification, you must consider not only the verification of its deontological virtues, but also the debunking of its utilitarian value as a check and balance against the enforcement of bad government laws. Lysander Spooner wrote at length, in 1852, about how it was the right, and more importantly, the duty of jurors to judge the justice of the law; that is, it was the prerogative of the jury to judge the law itself by voting their conscience. Yet, Spooner also mentioned that the United States Congress had abrogated the responsibility of preserving jury trials over to the several state governments, thus arguing that had the federal courts preserved jury trials, as well as the citizenry remaining knowledgeable about their juror veto, then the Congress would not have been so prolific in their rampant passage of legislation, or at the very least, that such enforcement would have been greatly hampered. Although I doubt that had federal judges informed juries in their instructions to them about their power to nullify that would have somehow hindered the passage of congressional legislation, I do think that Spooner was correct about the ignorance of Americans on their ability to nullify unjust government edicts.

Constitutionally speaking, jury nullification is implied by the right of trial by jury itself. Article III § 2 clause 3, the Fifth Amendment, the Sixth Amendment, the Seventh Amendment, and even the Ninth Amendment of the United States Constitution all say in turn, respectively, that:

 

“The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crime shall have been committed…”

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury…”

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed…”

“In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, then according to the rules of the common law.”

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

 

Explicitly mentioned no less than five times, considering also the scope of the unenumerated rights, really demonstrates the point of commonality between the Federalists and Anti-Federalists during the ratification period. According to the current Texas Constitution of 1876, Article I §§ 10, 8, and 2 say, respectively, that:

 

“In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury.”

“And in all indictments for libels, the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases.”

“The faith of the people of Texas stands pledged to the preservation of a republican form of government, and, subject to this limitation only, they have at all times the inalienable right to alter, reform, or abolish their government in such manner as they may think expedient.”

 

Obviously, a government that recognizes the right of revolution should also recognize, to paraphrase Tom Stahl, jury nullification as an expression of such alteration and reformation of the government.

Statutorily, however, the federal government mandates jury duty from the American citizenry in Title 28, United States Code §§ 1861 – 1869; the Texan government similarly requires jury duty from its citizens pursuant to Chapter 62 of the Texas Government Code, as well as from Article 19 within the Texas Code of Criminal Procedure. Qualified jurors are defined by the federal government in 28 USC § 1865, and by the Texan government in Article 19.08; in brief, both governments define law-abiding adult citizens of sound mind who comprehend English to be, more or less, potential jurors. Failure to respond to a jury summons, however, is punishable by 28 USC § 1866(g) and §§ 62.0141 & 62.111 of the Texas Government Code, respectively, as:

 

“Any person summoned for jury service who fails to appear as directed may be ordered by the district court to appear forthwith and show cause for failure to comply with the summons. Any person who fails to show good cause for noncompliance with a summons may be fined not more than $1,000, imprisoned not more than three days, ordered to perform community service, or any combination thereof.”

“In addition to any criminal penalty prescribed by law, a person summoned for jury service who does not comply with the summons as required by law or who knowingly provides false information in a request for an exemption or to be excused from jury service is subject to a contempt action punishable by a fine of not less than $100 nor more than $1,000.”

“A juror lawfully notified shall be fined not less than $100 nor more than $500 if the juror: (1) fails to attend court in obedience to the notice without reasonable excuse; or (2) files a false claim of exemption from jury service.”

 

Although the right of trial by jury, and jury nullification by implication, are constitutionally guaranteed by both governments, the cost of that enjoyment is the statutory threat of punishment against brazenly disobedient citizens ranging anywhere from a minimum $100 fine to a maximum penalty of three days incarceration, a $1,000 fine, and a unknown number of hours of unpaid labor, depending on which government you’re dealing with; needless to say, civilly disobeying a jury summons is not without the risk of potential jail time.

Does a citizens’ grand jury enjoy any nullification abilities? Perhaps, but if any citizens’ grand jury were to be convened, I doubt it would be respected or even tolerated by the government. Consider the ramifications of the 1996 Tampa Common Law Court Trial had on the lives of Philip Marsh, Emilio Ippolito, and especially, Larry Myers. Although the Under One Banner petition I signed last year does demand that the United States Congress pass legislation to empanel a federal Citizens’ Grand Jury with the explicit purpose of hearing charges on violations of the United States Constitution (pursuant to Art. III §§ 1 & 8, as an “inferior court”), this was intended more as an olive branch to demonstrate that the federal government cares absolutely nothing for you, as further evidenced by the standard form letter I received from U.S. Senator John Cornyn.

In light of the two classes of American citizenship, what would constitute a jury of your peers? If the jury pool is nearly composed entirely of 14th Amendment citizens, by what right does a United States citizen have to sit in judgement of a Citizen of a State? The Handbook for Federal Grand Jurors neglects to address this pivotal question, and neither does the Handbook for Trial Jurors Serving in the United States District Courts; as can be expected, the Texas Uniform Jury Handbook says nothing about this either.

What the governments’ jury handbooks do say is more blandly procedural than anything else. Namely, that there are citizens who are eligible for jury duty, and that these qualified potential jurors are placed in the jury wheel, which randomly selects whom may be summoned. Those citizens who receive a jury summons must appear at the specified courthouse for voir dire (that is, jury selection), and that those citizens who pass muster through voir dire are sworn in as jurors. During their time as a juror, the judge will give jury instructions as to how the jurors are supposed to judge the merits of the prosecution’s case against the defendant. Towards the latter end of their service, the jurors retire for jury deliberation, where they privately discuss behind closed doors what happened in the courtroom, and ultimately decide the defendant’s fate. When the jury has finished deliberating by voting, they reappear in the courtroom to deliver their verdict, assuming, of course, that they avoid becoming a hung jury.

Jury nullification happens when the jurors are deliberating. By either causing a hung jury or an outright acquittal, even a single juror who votes his conscience can set the accused free, or at least cause the prosecutor some grief by the judge declaring a mistrial. This is all assuming, of course, that a fully informed juror has survived the aforementioned stages in the jury process without incident, with the hardest one being voir dire, which has been used by the government to intentionally weed out anyone who is even aware of the jury’s historic power to nullify unjust government laws.

World-renowned for being the most recognizable advocates of jury nullification, libertarians have garnered a reputation that has become nearly synonymous to them just as much as they are popularly recognized for being the most vocal opponents to the entire concept of the government’s so-called “victimless crimes.” Unfortunately, to paraphrase St. Bernard of Clairvaux, the path to hell is paved with good intentions, and the typical libertarian intention to educate potential jurors about their historic veto power, more often than not, increases their opportunity costs. Despite adhering to the same political philosophy myself, I most vehemently disagree with the faith most libertarians place in the educational outreach of jury rights.

Case in point, the mission of the Fully Informed Jury Association (FIJA) is to teach jurors about their historic, and current, legal ability to nullify tyrannical laws. Granted, they have a terrific selection of free downloadable leaflets and other educational material with which to spread the good message of jury nullification, yet I was dismayed at the email I received back from Kirsten Tynan as to the effectiveness of jury nullification in rolling back the power of government. She stuck with the two frequently cited examples of the 1850 Fugitive Slave Act and the 18th Amendment’s prohibition of alcohol as unjust laws that jury nullification was effective in overturning; these examples, as well as the Whiskey rebels of 1794 and the Vietnam era draft dodgers, are the typical ones used by FIJA (as well as by most libertarians) to demonstrate the alleged effectiveness of jury nullification. Seldom has any FIJA or libertarian source used cannabis as a modern example; even then, there are rarely any specific cases that are cited where any bad law was successfully nullified by the jury since Ronald Reagan’s presidency.

Oddly enough, some of the most vocal advocates of jury nullification are anarchists. Larken Rose and Josie Wales are but just two of the numerous contemporary voluntaryists who wholeheartedly endorse jury nullification. Initially, this may seem strange given that jury nullification is simply little more than a negation of government law, but then again, so is anarchism, which is simply little more than a negation of the State; in that regard, the appeal of jury nullification to anarchists makes a strange sort of sense. Unless, of course, you take Murray Rothbard’s position on jury duty:

 

“Finally, there is another cornerstone of the judicial system which has unaccountably gone unchallenged, even by libertarians, for far too long. This is compulsory jury service. There is little difference in kind, though obviously a great difference in degree, between compulsory jury duty and conscription; both are enslavement, both compel the individual to perform tasks on the State’s behalf and at the State’s bidding. And both are a function of pay at slave wages. Just as the shortage of voluntary enlistees in the army is a function of a pay scale far below the market wage, so the abysmally low pay for jury service insures that, even if jury ‘enlistments’ were possible, not many would be forthcoming. Furthermore, not only are jurors coerced into attending and serving on juries, but sometimes they are locked behind closed doors for many weeks, and prohibited from reading newspapers. What is this but prison and involuntary servitude for noncriminals?”

 

Although I have pointed out before that Mr. Libertarian might as well be thought of as Mr. Voting, I believe Rothbard has hit the nail squarely on the head here. He goes on to say that:

 

“It will be objected that jury service is a highly important civic function, and insures a fair trial which a defendant may not obtain from the judge, especially since the judge is part of the State system and therefore liable to be partial to the prosecutor’s case. Very true, but precisely because the service is vital, it is particularly important that it be performed by people who do it gladly, and voluntarily. Have we forgotten that free labor is happier and more efficient than slave labor? The abolition of jury-slavery should be a vital plank in any libertarian platform. The judges are not conscripted; neither are the opposing lawyers; and neither should the jurors.”

 

Keeping in mind Gustave de Molinari’s thesis that the free market produces better quality security services than the government, is it really that far fetched to contemplate the idea that perhaps the private production of arbitration and/or adjudication services would be preferable to what the judiciary’s government-enforced monopoly on the law can provide? If so, then advocating for the use of jury nullification would be, at best, a rearguard action, at least until such time that the agorists can reliably sell private dispute resolution services to their clientele.

Why isn’t jury nullification explained in school, or more often in the corporate media? As Erick Haynie remarked back in 1997:

 

“The great distinction in American jury nullification doctrine, however, is that while juries enjoy an unrestrained power to nullify the law, courts almost universally forbid this power to be explained to juries. The prevailing view among jurisdictions is that affirmative instruction on the ability to nullify would lead to lawlessness in the jury decision-making process…[t]hus, whatever may have been the practice of common law England or the courts of the early American Republic, modern American juries are not instructed to determine or weigh the utility or validity of the law. Although the great majority of American courts recognize the power of the jury to nullify, neither the defendant’s attorney, nor the court, is typically allowed to inform the jury of that power. Judges are to instruct juries on the applicable law; juries are to apply that law to the facts of the case.”

 

In other words, jury nullification is treated essentially as an “open secret” by the bar attorneys, much like how these lawyers have been creating their unconstitutional bureaucratic Administrative Agencies since 1946, or have conveniently ignored the existence of the Titles of Nobility Amendment. Put another way, those silly American people cannot be trusted with the awesome power of jury nullification, yet these gracious bar attorneys are oh-so-responsible in their systematic violations of the U.S. Constitution. So, unless a juror is somehow told about their (mostly) unenumerated right to judge the law as well as the facts of a case by voting their conscience before they are summoned for jury duty, jury nullification will never happen.

Unlike their failure to officially recognize the Titles of Nobility Amendment last year, the New Hampshire legislature did successfully pass a bill in June of 2012 that adds a sentence to their Revised Statutes Annotated, which is cited at RSA 519:23-a, as saying that:

 

“In all criminal proceedings the court shall permit the defense to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.”

 

Thankfully, the New Hampshire legislature decided to rebuke the institutional secrecy about jury nullification, at least to the degree that the defense is allowed to inform the jury of their unique veto without risking a contempt of court charge. I must ask though, does a statute like RSA 519:23-a actually make any significant difference in increasing the probability that a juror will nullify a bad law? Answering that question necessarily requires pointing out the fact that 97% of federal cases, and 94% of state cases, never arrive at trial, mainly because the defendants plea bargain out in exchange for a perceived lesser sentence.

How has FIJA’s track record been over the past 20 – 30 years in educating citizens who may soon find themselves in a position to use jury nullification? Other than Julian Heicklen getting arrested by the Standing Army numerous times for simply handing out FIJA leaflets, not too much; in fact, one could argue, quite easily, that juries are all too quick to convict defendants. Consider Rich Paul, Larken Rose, or many of the defendants Harvey Silverglate wrote about; regarding Kate Ager‘s conviction, none other than Ian Bernard remarked:

 

“So, the cops were just being ludicrous, but [the] fact is, people trust the cops, and this jury came back after 45 minutes of deliberations with a guilty verdict. They had called, I guess, to ask for the videos, so they could watch them…. as usual, whomever the holdouts were decided to flip over to ‘guilty’…. they already had lunch, but they wanted to get out, and didn’t want to come back the next day, but it’s just so disappointing. People are so likely to go along with the group. You could still say ‘not guilty’…if you find yourself on a jury, and you find yourself in the position where you could nullify a bad law, because there’s plenty of juries being selected across the country for people who have never harmed another person… then go ahead and hold out. If you know the law is bad, vote ‘not guilty.’ You, your one vote, could cause that mistrial, and make the state have to go through the process all over again…now, I have a friend in Florida who told me he got on a jury once recently, and he found himself in a position where he was pressured, where he broke…it’s groupthink, it’s peer pressure, and somebody who knew better, broke.”

 

Even when Bernard tried on two different occasions to get a 5 minute interview with jurors by paying them $20 each, only one former juror, from what became known as the “Trespassive Three” trial, took him up on his offer. Not for attribution, she said regarding being told about jury nullification in the courtroom that:

 

“I do believe they [the defendants] have the right to be there [in a public park past 11 pm], but I also believe that we need to have rules in our society, and if we don’t follow those rules – I was telling the people there in the jury with me, I come from a country where there are not a lot of rules, and my country is not doing very well, so I choose to follow those rules so I can leave a better country.”

 

In terms of whether she thought constitutions can be superseded by municipal ordinances, she said it’s hard to answer because (allegedly) constitutions “give us” rights, yet, those freedoms have to applied in the “right way.” So, whether informed by FIJA, or the government itself, what can be extrapolated from her responses (as well as from the minimal responses from Rich Paul’s jury) is that ultimately the reason why jurors do not nullify is either because they believe that, despite constitutional law, the lawyers should make the “rules” we all must obey, or, because they are incentivized to convict.

Remember what Rothbard said earlier in this article about jury duty being a form of indentured servitude? I revisit that here in order to provide a likely explanation for why jurors appear all too quick to convict defendants. The jury is just as captive as the defendant is, because both are being threatened by the government, albeit in different ways; the former via criminal charges hanging over his head, and the latter via 28 USC § 1866(g) or §§ 62.0141 & 62.111 of the Texas Government Code, as applicable. Ergo, you literally have this version on a theme of the prisoner’s dilemma game, with the noticeable difference that the jury has much more power than the defendant does in determining how quickly they can escape. Should it be a surprise to anyone that the jury would choose to save themselves rather than spend one more minute than they think they have to in acquitting a defendant who may have harmed no one?

Jury nullification, if anything were to be objectively said about it, works just as well as state nullification, which is to say, not at all. The numerous barriers to entry the American governments throw up to obstruct fully informed jurors from judging the law itself by voting their conscience makes it nearly impossible for such jurors to nullify unjust government edicts. As if that wasn’t bad enough, most defendants muck up their own case by plea bargaining out; and even when they don’t, jurors are more likely than not to just rubber-stamp whomever the lawyers wanted railroaded straight into prison. Even if a juror successfully managed to nullify a bad law, despite everything I’ve just mentioned, he is still liable to be punished by the judge, as Laura Kriho was back in 1996. This inherently reformist method of telling the government where to step off, when examined in the light of hard experience, portrays a very different face of unnecessarily increased opportunity costs.

Given the aforementioned details, what should your attitude and actions be towards jury duty? Your options, as I see it, are a sliding scale in shades of grey. One option would be to follow FIJA’s advice by becoming what some have called a “stealth juror” by answering the lawyers’ questions during voir dire as honestly, yet vaguely, as you can. Another option would be to go ahead and obey their law by appearing in court, but then deliberately sabotaging it by saying during voir dire that you are knowledgeable about jury nullification; this would be done in order to increase the probability that you’ll be dismissed from jury duty (and thus, getting back to your own life as soon as possible). As an unknown libertarian has advised:

 

“If you are called to serve as a juror, stating that you are a libertarian or are familiar with the Fully Informed Juror movement will likely get you dismissed, because government wants convictions regardless of bad law or the applicability of good law. Convictions make it appear as if they are justifying their cost. Convictions are a warning to anyone who would oppose the government or its agents.”

 

I guess that is as good advice as any when it comes to handling jury duty. Yet another route would be to unregister from the voter rolls (as I did last year) and allow your driver’s license to lapse in order to avoid being put on the jury wheel. The reason you would have to do both is because the several state governments, including Texas, more often than not draw the jury pool from both the voter registration and driver’s license databases; by contrast, the federal government only considers the voter registration databases maintained by the state governments for their jury wheels. Of course, there is always the civil disobedience approach whereby you would remain a registered voter and/or licensed driver, yet when summoned for jury duty, you choose to just not show up for court. Naturally, since such an act would be a brazen act of civil disobedience since you’d already be identified by law enforcement, it would only make sense to prepare yourself to suffer the punishment when the gendarmerie are sent after you.

Attempting to reclaim the jury box is long past. Sure, one could point to the successes of Pastor Stephen Anderson or Vernice Kuglin, but seriously, aren’t disobeying a police officer and tax evasion still illegal? If so, then how effective were those jury acquittals in “nullifying” unjust laws, anyway? Regardless, what about Donald Scott, Michael Hill, Vicki Weaver, David Koresh, Jose Guerena, or Oscar Grant? Oh, wait, that’s right…none of them ever got a chance to “have their day in court,” did they? Maybe, just maybe, shouldn’t Americans rely less on the State and more on their own native intuition for creatively securing their liberties, without the government’s permission?

A Primer on Freeganism

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Consumerism has slowly eroded the American ethos of self-sufficient pioneers and their rugged individualism. As such, frugality is quickly becoming a lost virtue. Should it really be any surprise that once the practical means of increasing and maintaining one’s freedom has been culturally disregarded, tyranny wouldn’t rear its ugly head once again?

 

A portmanteau of the words “free” and “vegan,” freegans are essentially human maggots. They are the environmentalists who became fed up with reformism and decided instead to try to mitigate the harm to the earth by reducing their own personal waste. Much like the black soldier flies who inhabit the compost bins of most homesteaders, freegans subsist off of the waste of corporate consumerism while leaving behind a nagging itch as to whether there is, in fact, such a thing as a free lunch.

Odd as it may sound, freeganism is primarily a methodology, not an ideology or even a reliable tool of institutional analysis. Although much of their sentiments appear to be genuine, that does not therefore mean they are correct or even proper. What I am arguing here is that freegans pioneered techniques that have proven their utility over the years (in much the same way that state citizens pioneered techniques for successfully navigating police interrogations), yet the statistics they promulgate and the rhetoric they spew is worth less than the edible dumpstered food they rescue (pun intended).

Food wastage is the most ardently held grievance by the majority of freegans. According to the Economic Research Service (ERS) of the United States federal government’s Department of Agriculture (USDA), 96 billion pounds of food was lost in 1995; a decade and a half later, ERS reported that 133 billion pounds of food was lost. Initially, this sounds pretty wasteful and recklessly irresponsible, doesn’t it?

Keep in mind that this food wastage was limited to edible food wasted only at the retail and consumer level of the corporate supply chain. Granted, although the food wastage at the consumption end of the supply chain increased from 27% – 31% between 1995 – 2010, the total edible food supply increased from 356 billion pounds to 430 billion pounds over the exact same time period. In other words, despite a 5% increase in edible food wastage, there was a concomitant 20.7% increase in total food production between 1995 – 2010.

This is not the say that the freegans do not have a legitimate grievance here, for they do, very much so, but it is hard for me to not raise my eyebrow when the freegan literature cites secondary sources who claim that the ERS is low-balling the food wastage numbers, almost as if it were some part of an elaborate conspiracy that is difficult to prove. Proclamations of domestic food wastage being 40% (or higher) is not even slightly accurate, for the original source material only showed food wastage being almost 40% in 2000 before dropping back down to the mid-30% range by 2005. Such a willful inflation of the statistics (just like how the War Resisters League did with military spending, all the while ignoring the noticeable increases in welfare spending) seems to me to be a way for the freegans to unnecessarily obfuscate the systemic problem of edible food wastage.

Simply put, according the most conservative figures (that is, the ERS statistics), the fact of the matter is that well over a quarter of all edible food in the United States is wasted by grocery stores, restaurants, and households. The implications of this are nothing less than staggering, for if you remember that out of ~ 315 million Americans, 82% are urbanized; therefore, the supermajority of these wasted surplus foods are going to be dumpstered in urban and suburban areas (and in relatively good condition too, depending on climate). This suggests, more than anything, that not only is there plenty of edible food for the freegans to scavenge, but also that they are going to be congregating in metropolitan areas; hence, this is why freegans are also known as “urban foragers.”

Philosophically speaking, freegans tend to have a frothing hatred of not just Federal Reserve Notes (FRNs), but sound money as well. As Jeff Shantz succinctly put it:

 

“In place of the logic of the market and production for profit, freeganism offers the alternative of social relations organized around the vision of a gift economy. In this regard many freegans refer to the anthropological and sociological writings of Marcel Mauss who argued that societies without states and markets, far from engaging in undeveloped market activity through barter, actually desired social interaction based around gift exchanges rather than through utilitarian or instrumental exchanges.”

 

So-called gift economies are not direct barter, for they reflect an old anti-propertarian bigotry. This prejudice against private property believes that it can solve the double coincidence of wants and the problem of indivisibility by refusing to provide reciprocal value in trade. Answering the problem of statism, which does not respect private property, by saying that private property and voluntary trade should be abolished, is fallacious reasoning at best. Sadly, freegans appear to suffer from the false cause fallacy by loudly denunciating the multinational corporations, all the while turning a blind eye to the bureaucratic administrative regulations that are coercively enforced by the very same government who created those corporations in the first place!

Let me be perfectly clear regarding a significant nuance in the freegans’ rhetoric – I think that mutual aid, particularly as expressed through cooperatives, is useful and vital for the evolution of human liberty, for this was the basis behind the friendly societies, which were the agora’s solution to the market demand for a social safety net. Voluntarily funded and privately staffed, these mutual aid societies adequately served their function in getting distraught people back on their feet without engaging in welfare statism or regulatory capture (as the inevitable results of the New Deal). Yet, the assistance they provided to the destitute were not under the auspices of “getting something for nothing,” for those receiving such aid were held accountable whenever they abused their sponsor’s largesse.

The real value, though, that freegans have to offer are their pragmatic techniques for creatively minimizing their use of FRNs. Whether it be through time banking, guerilla gardening, squatting, vegetable oil powered automobiles, regifting, or even dumpster diving, freegans truly shine when they are practicing the fine art of getting by with little money. Such methods can be used in isolation, or in tandem with whatever combinations a freegan may desire; some freegans use all the aforementioned techniques in order to enjoy a comprehensive lifestyle, which is independent of the white market.

Dumpster diving, in particular, is a real hoot. Also referred to as “skipping,” “garbage picking,” or even “bin raiding,” diving into dumpsters as a way of salvaging abandoned property is a very capitalistic thing to do. Divers have been able to scavenge edible food, wearable clothing, and even usable furniture. Of course, since not all dumpster divers are freegans, some divers choose to refurbish their salvaged goods and sell them cheaply on eBay or Craigslist (Grifter once gave a lecture on dumpster diving for hackers at Defcon).

At this juncture, you may be curious as to the legality of freegan practices. General speaking, guerrilla gardening and squatting are forms of civil disobedience, dumpster diving is a grey area, and all the other techniques are presumably legal.” What I mean by dumpster diving as a legal grey area is that depending on jurisdiction, diving may or may not be illegal; yet, even if it technically is not, the police interrogations that freegans have experienced demonstrate that the American gendarme will use whatever excuse they have to in order to get them to stop diving, whether it be an accusation of vandalism, trespassing, or even “disorderly conduct.” Despite the fact that the Bill Emerson Good Samaritan Act of 1996 significantly lowered the criminal and civil liability for grocery stores and restaurants to donate food down to the standard of gross negligence, Big Food still chooses to trash perfectly edible food, not realizing that food dating labels have nothing to do with food safety. As many freegans have remarked time and again, the same standard of gauging the edibility of food in your refrigerator is what you would use to judge the edibility of food in a dumpster (it is also because of this rule of thumb that dumpster diving is more beneficial in colder climes).

Unfortunately, dumpster diving is illegal in both Houston and Austin, if not in Texas generally. James Kelly, a homeless Navy veteran, was ticketed for “disturbing the contents of a garbage can” last year, and he is facing a maximum fine of $500. The Code of the City of Austin criminalizes anyone who removes any “rubbish, refuse, or other discarded materials from any garbage or recycling container or receptacle” that is located on any property but his own, and said individual is to be fined anywhere between $100 – $2,000 per offense, pursuant to §§15-6-1(18), 15-6-111, 15-6-116, & 15-6-132. Needless to say, this is all mala prohibita in action, and in that regard, those of us who care about human freedom must support the rightful liberty of all people to salvage abandoned property, regardless of whether the government approves of it.

Media coverage of the freegans since 2005 has portrayed them alternately as dedicated environmentalists and as deranged lunatics. Originally, the corporate mainstream press treated them as curious pariahs, at least until Jane Velez-Mitchell had a change of heart. Alternative media judged them a lot more fairly, eventually siding with the freegans, not necessarily against consumerism, but more around the sheer food wastage. Of course, the sensationalism generated by opening up garbage bags stuffed with day old bread never got old, and neither did the concomitant prejudice of many people who turned their noses up at what they perceived to be the “ickyness” of freegans skipping the bins.

How useful is dumpster diving to the average Joe? Well, it allows a way for people to get off food stamps, and perhaps the welfare state as well, eventually. It can help substantially lower your grocery bills now, thus freeing up what you would have spent on food for some other purpose, such as your emergency food storage or ammunition cache. And, most significantly, it can be used as a way to supply a safe house, or even an underground railroad, should the need ever arise because of the American police state.

More importantly, how useful is the freegan ethos to you, though? As a fellow libertarian comrade of mine asked me, “Can I pick it up and use it to win my freedom back?” Unlike state citizenship, freeganism can indeed be picked up and used immediately, and perhaps you’ve been doing it already without realizing it. For instance, if you’ve ever recycled gray water for toilet flushing, hauled away a liquor store’s used cardboard boxes, exchanged a book through a Little Free Library, or ate free samples at the local grocery store, then you’ve been practicing freeganism. Again, it is more along the lines of what Gerald Celente referred to as that “Yankee frugality” that lovers of liberty should hold dear, and I will leave you with the following adage that sums it all up perfectly:

“Use it up, and wear it out. Make it do, or do without.”