COPIED RIGHT

Unnecessary Detail?

Eugene Volokh | 7.27.2021 8:01 AM

From the Minnesota disorderly conduct statute:

Whoever does any of the following in a public or private place, including on a school bus, knowing, or having reasonable grounds to know that it will, or will tend to, alarm, anger or disturb others or provoke an assault or breach of the peace, is guilty of disorderly conduct, which is a misdemeanor:

(1) engages in brawling or fighting; or

(2) disturbs an assembly or meeting, not unlawful in its character; or

(3) engages in offensive, obscene, abusive, boisterous, or noisy conduct or in offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others.

A person does not violate this section if the person’s disorderly conduct was caused by an epileptic seizure.

I would think that the last sentence wouldn’t really be necessary, at least to the extent it’s aimed at capturing involuntary conduct: It’s a general principle of criminal law that involuntary conduct (e.g., sleepwalking and actions during a seizure) isn’t covered by the law, under the so-called actus reus doctrine. I suppose it might be good to make this extra clear, though perhaps there’s some risk that courts might infer that Minnesota statutes that lack such a provision implicitly reject the actus reus doctrine. But in any event, I’ve never seen something like this in a statute, so I thought I’d note it.

(It might be a crime to do something knowing that you’re at risk of involuntary conduct that causes injury—for instance,  it may be reckless driving to drive when you know you’re subject to extremely frequent seizures, or for that matter when you know you’re very likely to fall asleep or otherwise lose consciousness—but that doesn’t seem to apply here.)

19 Responses

  1. Open Thread about a MN statute. I share Volokh’s view that the last provision is utter surplusage – but what if a court viewed it as essential? It seems to me this leaves open the notion that other recognized causes of diminished capacity to control one’s actions – like schizophrenia, Tourette Syndrome, brain damage, and so many more – are excluded for the defense because of the statute’s specific reference to epilepsy.

    Statutes can change the common law and usually do, in some way or another. Careful drafting is always an issue, even in small stuff, like a disturbing the peace statute. Just think about how much mischief there is both intentional and totally unintended in drafting huge bills in a short time and without lengthy debate and public hearings.

    In Congress, there used to be a corrective process called “technical corrections”. It depended on serious committee work and a will to get it right. A recent huge example were the last tax cuts. Even IRS had trouble issuing Regs because there was so much careless language in the rush to do the tax cuts, without even extensive committee work. There have been no technical corrections to that Act, AFAIK.

    I think there have been none to ACA. There won’t be to the next big bill either. Congress doesn’t work very well any more.

    NOVA can speak to the most recent big bills, the COVID emergency stuff in two admins. I haven’t followed closely but I would bet they were carelessly written as well.

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    • It seems to me this leaves open the notion that other recognized causes of diminished capacity to control one’s actions – like schizophrenia, Tourette Syndrome, brain damage, and so many more – are excluded for the defense because of the statute’s specific reference to epilepsy.

      That sounds like a carveout to on particular legislator for whom the issue was a perpetual hobbyhorse–thus had to be included or they wouldn’t support it, or something like that. I say, knowing nothing about how it was actually done.

      But it would seem to me like there should be a general standard for all such laws regarding diminished or compromised capacity, where other remedies that did not completely immunize the instigating party (re: the epileptic or the schizophrenic who puts themselves in a situation where some uncontrollable aspect of their health might post a risk to others–and they are aware of the potential risk they might be posing) were part of it. Such as mandatory counseling, a stint in a mental health or rehab facility, fines for negligence, etc.

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    • “I think there have been none to ACA. There won’t be to the next big bill either. Congress doesn’t work very well any more.”

      I found these. I had thought that there was one finally for the PPACA, but I could be wrong. NoVA would know for sure.

      https://www.npr.org/templates/story/story.php?storyId=246409425

      The point about there being no incentive for the minority party to proceed with a technical corrections bill if the original bill was passed in a party line vote strikes me as an accurate take on the politics of it. If no one on the other side voted for it, then it’s in their interest to see it fail in practice.

      Click to access R45244.pdf

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  2. OT: https://greenwald.substack.com/p/fbi-using-the-same-fear-tactic-from?token=eyJ1c2VyX2lkIjo4NTc0NzI2LCJwb3N0X2lkIjozOTAyMTg4MywiXyI6ImlqVWlBIiwiaWF0IjoxNjI3NDAwMjIyLCJleHAiOjE2Mjc0MDM4MjIsImlzcyI6InB1Yi0xMjg2NjIiLCJzdWIiOiJwb3N0LXJlYWN0aW9uIn0.u2tSsZTBexDeGT57UsCw-tnIC0Y9IJXGDfhIvKN0Qoc

    The article never once hinted at let alone described the highly active role of these informants and agents themselves in encouraging and designing the plot. Instead, it depicted these anti-government activists as leading one another — on their own — to commit what CNN called “treason in a quaint town.” The more honest headline for this CNN article would have been: “Inside the FBI’s tale of the plot to kidnap Gov. Whitmer.” But since CNN never questions the FBI — they employ their top agents and operatives once they leave the bureau in order to disseminate their propaganda — this is what the country got from The Most Trusted Name in News:

    In support of my long supposition that post terror plots disrupted by the FBI are in fact planned by the FBI.

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  3. Brent – worth noting on the state of the government’s eviction relief program.

    “We Could Have Stopped the Eviction Wave That’s Coming
    By Henry Grabar
    July 27, 20211:06 PM”

    https://slate.com/business/2021/07/eviction-moratorium-rental-aid-pandemic.html

    This caught my attention:

    “It’s worth adding that not every place has been so slow to act. The Treasury Department singled out a regional partnership in Houston and Harris County, Texas, which has helped more than 36,000 households, and the state of Virginia, which has also worked quickly.”

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  4. Quote of the Day:

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  5. I think that PAGA will look good on a hat.

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  6. Impressive how quickly the MSM line went from “the NSA would never do that” to “of course they do that, they do it all the time”:

    “On Friday night, Mark Steyn subbed in for Carlson on “Tucker Carlson Tonight” and said that unmasking can occur only “in extraordinary circumstances.” Those “extraordinary circumstances” occurred more than 45,000 times from September 2015 to the end of 2019.”

    https://www.washingtonpost.com/opinions/2021/07/27/tucker-carlson-nsa-story-bogus/

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    • The Modified Limited Hangout in action. The next step will be to celebrate the unmasking / surveillance as necessary and then on to admitting the goal was to get him off the air due to “disinformation”.

      Like

    • No one will notice. “How ridiculous and paranoid to say the NSA was spying on Tucker Carlson” becomes “Of course they were, that’s the entire reason the NSA exists: to spy on Tucker Carlson.”

      And it’s all fine.

      Like

    • The other point that Wemple doesn’t even address at all is the anonymous leaking by (presumably) NSA employees or those who had access to the unmasked recordings to target Carlson which was proven to be 100% true.

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  7. So much for land of the free, home of the brave:

    “The courts are destroying America’s ability to fight pandemics

    Public health crises require a dynamic government that makes quick decisions. GOP judges want to prevent that.

    By Ian Millhiser
    Jul 27, 2021, 1:30pm EDT”

    https://www.vox.com/2021/7/27/22594374/courts-covid-delta-pandemic-supreme-court-brett-kavanaugh-public-health-destroy

    Like

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