Fantasyland Law: where everyone is an attorney

(author’s photo, 2007)

As you might guess, this is not what the statute section says at all; in fact, it more or less states the opposite, as could be surmised by its title, “Improper Use of Lanes.” The statute states that only when “reasonably necessary to avoid hazardous conditions” may bicyclists use a full lane. But the section continues, quite common-sensically, stating that a slower driver (i.e., bicyclist) must yield to faster traffic (i.e., automobiles). The statute also begins with common sense — that bicyclists should hug the right curb whenever possible.

Another self-invented lawyer (author’s photo, 2008)

But forget about the statute for a minute. I used to ride my bike well over a thousand annual miles on Eugene’s city streets, and I only followed one law: the law of physics. My aim was always to avoid getting squished by cars. Never heard of a legal statute outweighing a 3,000-pound car.

Anyway, clearly the statute was worded precisely against the Critical Mass mentality, not in support of it. But this sort of fantasyland counter-interpretation and accompanying obfuscation is quite typical in Eugene activist parlance, when a little bit of fake information goes a long way . . . toward nonsense. Pseudo-clever semantic gamesmanship substitutes for insight, as does audacious self-righteousness in lieu of common sense.

Jurisprudence? This isn’t even prudence.

Take Patrick Dodd, a self-described homeless advocate and folksinger. For the past half century, Eugene has had one of the highest per-capita homeless rates in the nation. But back in a 1992 television news interview, Dodd claimed he did not know a single homeless person in Eugene. “They were born here. This is their home. They’re citizens without addresses, yes. But they are not homeless. They’re treated like refugees, yes. But they are not homeless. They have a home. This is it.”

Dodd kept returning to the irrelevant citizenship idea, claiming a lack of shelter indicated a violation of civil rights, since a permanent address was and is required for registering to vote. He continued, “They can’t receive mail unless they go through elaborate things. Unless they set up elaborate support systems, they can’t enjoy any of the benefits of regular citizens. But they are citizens.”

Anyone can receive mail for free, courtesy of “General Delivery” at the local post office. As for voting? Yeah, renting a post office box is so elaborate!

Fast forward to more recent years. Warning: Hegel once observed that the only thing people learn from history is that people never learn anything from history (that great smart aleck Winston Churchill liked to repeat this observation).

In 2012, a group calling itself Safe, Legally Entitled Places to Sleep (S.L.E.E.P.S) showed its wishful thinking in its very name and in its ineffective advocacy for homeless campers. There is no legal entitlement to a safe place to sleep, and sleep is not really the issue — despite a proliferation of feint-of-hand graffiti proclaiming, “Sleep is a human right,” and “Sleep is not illegal.” No one in their right mind ever said otherwise. Instead, the legal issues almost always involve property and trespassing, as well as property degradation through vandalism, theft, and trashing with household garbage and human waste. Downtown businesses regularly hose down the sidewalks in front of their establishments every morning.

S.L.E.E.P.S protest camp in the “Occupy Eugene” mode, 2013 (author’s photo)

S.L.E.E.P.S advocates claimed that Jones v. City of Los Angeles (2006) vindicated their legal claims of an entitled safe place to sleep. In Jones, Judge Kim McLane Wardlaw reasoned that Los Angeles had “encroached upon Appellants’ Eighth Amendment protections by criminalizing the unavoidable act of sitting, lying, or sleeping at night while being involuntarily homeless.” But Judge Wardlaw also clearly stipulated that Los Angeles in no way owed shelter to the homeless. Furthermore, Wardlaw ruled that Los Angeles could continue to arrest and prosecute the homeless for obnoxious behavior, including aggressive panhandling, disturbing the peace, and obstructing public rights of way.

Sleep disruption as a violation of constitutional rights? A legally entitled place to sleep? Sorry boys and girls; that won’t stand up in court, especially when you are only citing a small fraction of cherry-picked evidence. Not exactly the most sophisticated use of legal precedent, but a tactic that makes perfect sense in the minds of self-proclaimed legal experts, where up is down, and 2+2=5.

Self-invented attorneys’ corporate headquarters, 2012 (author’s photo)

Some of these activists seem to think the law is just some kind of archaic, cryptic code they can crack and utilize if only they respond with an argument that sounds vaguely legalese. “Like, corporations aren’t people, man.” Citing caselaw “empowers” them like a magic charm, whether or not they actually understand the citation. Who needs those dern lawyers, anyway?

By the way, don’t try to explain what a “legal fiction” is; they’ll act like you’ve introduced a non sequitur pertaining to romance novels.

A rare leftover from the short-lived Occupy Eugene fad (author’s photo, 2020).

In 2016, someone calling himself “Abraham” handed me a flyer entitled, “The Effective Activist” that contained a screed about our supposedly hijacked grand jury system. His “research” strangely resembled the brief Wikipedia description for the grand jury of America’s early republic era. Interesting as that may be, things change. Are we going to advocate that John Roberts ride circuit the way John Jay did?

But what’s a little historic legal evolution among friends? Don’t they still allow duels at twenty paces? No wonder the police never come to my neighborhood. Posse Comitatus Lives!

Every defense attorney I’ve ever met expresses concern about the power of grand juries. Defense attorneys (and even judges) are excluded from grand jury proceedings, thus possibly skewing cases against defendants. I’m more apt to trust these attorneys’ misgivings, not “Abraham,” who wants to morph the grand jury’s historic role into a contemporary populist mandate. Abraham wrote, “Activist organizations and individuals who desire an end to corporate and government official misconduct, need to join together to inform themselves and others of the advantages of using the Grand Jury system as an effective procedure for the oversight and enforcement authority of the people.”

Sorry, Abraham. Prosecutors (and the DOJ) are already on those cases. Our complex legal system has serious flaws, but this populist agenda reeks of misunderstanding, like advocating direct democracy instead of accepting the limitations of representative legislators, the latter a practical logistical necessity that anyone should appreciate.

An excerpt from “Abraham’s” grand jury flyer, 2016.

If you have affection for our civic arrangement, you might think Churchill was probably right; in 1947, he said, “Democracy is the worst form of Government except for all those other forms . . . .” But Churchill never said, “The Anglo-American legal system is the worst legal system except for all those other forms.” If the Amanda Knox trial in Italy taught us anything, it was a renewed appreciation for things like double jeopardy (never a prominent feature in Roman Empire-derived European continental law).

As for the wonderful Anglo-American common law tradition (i.e., judge-made law)? The populists seem to think “common” indicates themselves, as in “commoners.” After all, the grapevine has told them one of the great myths of our times: that judges are supposed to interpret law, not make law . . . as if legislators were working ‘round the clock to cover every base with statutory law. Good grief. Even a little bit of common sense gives us an appreciation for the massive and centuries-old corpus of common law.

But here is an example of the populists’ notion of common law.

During 2021, amid the Covid pandemic, Portland (Oregon) residents Ricki Scott Collin and Amy Verlee Hall decided to tour points south to challenge mask mandates. They went into the Roseburg public library without masks, carrying a notebook filled with “legal citations” that supposedly exempted them from the statewide mask mandate regarding public places. The “legal citations” were all nonsense, of course. After they made their way up to Eugene, they videoed their confrontation with a restaurant owner. Collin repeatedly cited “18 USC 245,” claiming that “public accommodations law” allowed him to come into the establishment without a mask. As you’ve already guessed by now, 18 USC 245 has nothing to do with public accommodations (it pertains to appeals processes).

Why bother to attend three years of law school when you can just quote random federal code?

Wishful thinking based upon selective, partial, or downright nonsensical readings of the law is one of the more amusing features fairly common in the western United States, culminating in ultimate absurdities like notions of an individual being a “sovereign citizen” unaccountable to any broader society. Have these “sovereign citizens” considered how brief their freedom would last without (say) a national military? Look out “sovereign citizen,” lest Russia invade your ass.

In 2018, just up the highway from Eugene, the Corvallis police arrested Alanna Partin for driving without a license, interfering with police, and being a convicted felon illegally carrying a firearm. Once she got to court, she embarked upon the “sovereign citizen” ploy, first by demanding that Judge Locke Williams produce credentials verifying his judicial authority. Then she insisted that the Uniform Commercial Code govern her criminal proceedings, apparently based upon a ludicrous misreading of the 14th Amendment. The 14th Amendment mainly addressed the defunct southern states’ rationale for enslaving people. But even Section 4, the only section remotely dealing with “commerce,” actually addressed debts, pensions, and bounties relating to the then-recent Confederacy.

So how does this evoke the Uniform Commercial Code, not active until 1952? Obviously, by magic!

Exasperated, Judge Williams told Partin, “This court does not recognize the legal gibberish you are putting forward.”

Yet Partin persisted with yet more idiocy, pretending her case merited a change in venue from county to federal court, and how the county owed her daily monetary compensation for confiscating her firearms, and how the court would owe her “100 Trillion dollars” if they did not comply with the foregoing. The legal basis for the $100 trillion? 12 U.S. Code section 411, which (surprise!) has nothing to do with such matters (it pertains to reserve banks).

As the folk saying goes, “A little bit of knowledge is a dangerous thing.” But a little bit of fake knowledge suddenly makes attorneys out of the irrational, uneducated, and ill-informed. These are the folks who never let facts and logic ruin a good activist campaign, when being righteously “appalled” and filled with impotent moral “outrage” is more important than being intelligent or accurate . . . or even effective.

All joking aside, these examples point to a populism ever simmering beneath the surface of our judicial-governmental system. In recent years, it has reached episodic boiling points. But forget about the romantic notions of populism; as Jan-Werner Müller has recently helped us appreciate, in many ways this behavior lends itself to proto-fascism. First, “populism” is not to be confused with the historic Populist political party. Instead, as Müller writes, it is “something like a permanent shadow of modern representative democracy, and a constant peril.” At its heart, it reflects a very simplistic worldview, often one its bearers carry in frustration over an inability to understand or cope with (in these cases) our legal system. Recent manifestations have displayed themselves on the Left with various “occupy” movements, and on the Right with a proliferation of conspiracy theories — both reflecting the populist urge of “rule by the people.” But taken too far, “rule by the people” is a perilous illusion. As we saw during the 1930s, crafty “leaders” tend to exploit such sentiment to nefarious ends, and in those cases, ultimately costing of millions of lives.

So the populist-anarcho-libertarian circus performers have it all wrong, and sometimes dangerously so. As Sandra Day O’Connor wisely wrote, the real question is an often-elusive “balance between law and freedom,” and how “Each of these, if unchecked, can destroy the other.” The answer is to work diligently from within the legal system, regardless of its endless flaws. Heroic lawyers have manifested this approach ( Z. Alexander Looby and Bryan Stephenson, for examples) and they have helped innumerable disadvantaged people with little or no benefit to themselves. I’ll take them over the circus performers any day. In fact, I can still hear the circus down the street singing their anthem:

Copyright © 2022 Will Sarvis. All rights reserved.

REFERENCES

“Citizens without Addresses: a Local Report on Homelessness,” (Eugene, OR: Homeless Video Documentary Group and KVAL TV, 1992), minutes 5–7.

Bennett Hall, “Sweet Home Woman Claims Sovereign Citizen Status in Benton County Court,” Eugene Register Guard (Dec. 29, 2018).

Chelsea Hunt, “Eugene Store Owner Attacked While Enforcing Mask Mandate, Police Say,” KEZI News (Eugene, OR; Nov. 3, 2021).

Ariel Iacobazzi, “Pair Charged in Crumb Together Assault Has History of Criminal Charges,” KEZI News (Eugene, OR; Nov. 4, 2021).

Jones v. City of Los Angeles (2006) 444 F.3d 1118 (landmark case addressing homelessness).

David M. Kennedy, Freedom From Fear: The American People in Depression and War, 1929–1945 (NY: Oxford University Pr., 1999), page 515 (shredding the Pearl Harbor conspiracy theory).

Chris McKee, “Eugene Homeless Advocacy Group Pushes to Overturn City Camping Ban,” KMTR News (Eugene, OR; Dec. 12, 2012).

Jan-Werner Müller, What is Populism? (Philadelphia: University of Pennsylvania Pr., 2016), quote from page 11; also see pages 32, 44, 76, 77.

Sandra Day O’Connor, The Majesty of the Law: Reflections of a Supreme Court Justice (NY: Random House, 2004), quote from page 248; also see pages 259–60.

Oregon Revised Statute 814.430, “Improper Use of Lanes” (regarding bicycle rules in traffic).

Will Sarvis, “Leaders in the Court and the Community: Z. Alexander Looby, Avon N. Williams, Jr., and the Legal Fight for Civil Rights in Tennessee, 1940–1970,” Journal of African American History 88:1 (Winter 2003): 42–58.

Michelle Satterlee, “Illegal Speed Traps,” Eugene Weekly (Oct. 13, 2005).

Bryan Stephenson, Just Mercy: A Story of Justice and Redemption (NY: Spiegel and Grau, 2015).

12 USC § 411: “Issuance to Reserve Banks; Nature of Obligation; Redemption.”

23 USC § 2B.13 (regarding speed limit changes pursuant to road re-engineering).

42 USC chapter 21, subchapter II: “Public Accommodations.”

United States Constitution, Amendment XIV, §1–5.