Mimesis Law
24 January 2017

Be Civil Or We’ll Kill You

December 22, 2016 (Fault Lines) — Some people are assholes. Like this guy:

David Sanguesa, was captured on video [at a Coral Gables, Florida Starbucks] angrily yelling “Trump!” and “I voted for Trump!” at a barista when he felt he didn’t get his tall vanilla latte quickly enough because he was white. Then he demanded his money back, calling her “trash” and “garbage.”

So what to do about them? Well, if he broke a law (such as this one or this one), the answer is obvious: a prosecutor will file a charges against him. And if found guilty, he’ll have to face whatever consequences the court imposes. But what if he didn’t break the law? What if he is, in fact, just an asshole? Attorney Mikki Canton of Miami has an idea:

Besides mentioning that basic civility guidelines could be drawn up, Canton also spoke of establishing “civility courts” that would be empowered to hand down noncriminal punishments like community work.

“I had talked to the judges about getting civility courts,” Canton said. “Sometimes what you do doesn’t rise to the level of breaking the law, but it sure does break civility rules.”

Mao Zedong might have been a genocidal sexual deviant, but he made a good point when he said “Political power grows out of the barrel of a gun.” That was a pithy way of explaining the “monopoly of force” principle, which holds that the state is the only institution that can legitimately employ violence in pursuit of its objectives.[1] This is just as true of dictatorships as it is of democracies; the difference is that in a democracy, the populace has some say in how the state uses its monopoly. In other words, the citizens of a democracy have some say (direct or indirect) in making the laws they live under. Yale Law professor Stephen Carter explains it this way:

Every law is violent.  We try not to think about this, but we should.  On the first day of law school, I tell my Contracts students never to argue for invoking the power of law except in a cause for which they are willing to kill. They are suitably astonished, and often annoyed. But I point out that even a breach of contract requires a judicial remedy; and if the breacher will not pay damages, the sheriff will sequester his house and goods; and if he resists the forced sale of his property, the sheriff might have to shoot him.

This goes for criminal laws also. If you catch enough (“enough” might be only one) Driving While Revoked cases, a judge will sentence you to jail (or issue an arrest warrant if you don’t show up). If you won’t go quietly, the police will use force to bring you in; and if you resist violently, there’s a good chance you’ll end up dead. And frankly, it really can’t be any other way. The difference between America and a dictatorship isn’t that the government can’t lock you up or even kill you. It’s that in America, there has to be a reason, and that you’ll have a meaningful chance to argue otherwise.

The constitutional objections to Canton’s proposal have been covered by the Miami New Times and El Sombrero del Padre Santo. But also consider the practical aspects of it. First of all, who decides what’s “civil?” Our curmudgeonly, mean-ass editor? A gentlemanly federal judge from Nebraska? David Sanguesa? You? Me? Donald Trump?

Second of all, how would the logistics of this civility court work? If Sanguesa got a summons to civility court and refused to show up, does he get a warrant? If he says to the judge, “I got your civility right here!” and grabs his crotch, what then? Canton suggests the following sanctions for running afoul of her standards of civilized conduct:

Asked what types of punishment she envisioned, Canton provided an example:

Making them do some community outreach work, where they actually get a chance to interact with people and be civil,” she said. “If I were the judge I’d say, ‘What was it?’ and ‘Where did he commit this offense that didn’t rise to the level of breaking the law,’ and I would put him out there and make him be the spokesperson and make him work some community hours.

Put aside the insanity of a judge imposing punishment for something Canton concedes isn’t against the law, it still wouldn’t work. If our hypothetical miscreant blew off whatever illegal and unconstitutional punishment the “civility court” imposed on him, what does the court do then? In other words, how does it enforce its orders? The usual answer is “an arrest warrant.” What if he won’t come quietly? “That’s why the cops have cuffs, tasers, and guns.” What if he ends up dead? “Well, he shouldn’t have resisted.”

Mikki Canton probably hasn’t thought this through, but she’s willing to enforce her idea of civility at the barrel of a gun. That isn’t civilized at all.

[1] There are exceptions, such as self-defense, but even those are subject to the limitations imposed by the state.

One Comment

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  • Richard G. Kopf
    22 December 2016 at 4:15 pm - Reply

    Noel,

    Wonderful post. Greatest ever first sentence!

    All the best.

    Rich Kopf

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