They . . . Forgot

I’ve argued before, in “No Shirt, No Shoes, No Service”: It’s Really Fairly Recent, that people have forgotten that NSNSNS signs were created to keep out hippies (and other “undesirables”). Over time, they tried to rationalize why such signs existed, and came up with non-existent health code excuses.

Unfortunately, in the same way, judges forget the histories of the rights they are supposed to enforce.

The power of the state to make laws and rules is called the “police power”. It is generally stated that they state may provide for “the protection of the public morals, health, safety, or general welfare”. But that “general welfare” has always meant that their lawmaking (or rulemaking) is limited to protecting citizens against the actions of others, not protecting a citizen from what the state might perceive as that citizen’s folly against him- or herself.

Judges have now forgotten that, and seem to think that anything is fair game. They’ve seen seat belt laws and motorcycle helmet laws, but forgotten the legal reasoning that justified those based on protecting citizen’s from the actions of others.

Let me start out with a newspaper story I’ve used before, from the April 3, 1969 issue of the San Francisco Chronical (p. 3):

        Footloose in San Francisco

John Greenleaf Whittier’s “barefoot boy with cheek of tan” could not be ruled off San Francisco streets for failing to have the proper footgear, according to City Attorney Thomas M. O’Connor.

He informed the Board of Supervisors yesterday that the city cannot outlaw bare feet unless it can prove they are a threat to the public health.

“Unless the proposed legislation can be justified as protecting the general public from disease or injury,” said O’Connor, “legislation designed solely to protect that portion of the populace who desire to roam the streets barefooted cannot be justified as a legitimate exercise of the police power.

If the city can produce medical evidence that bare feet are a hazard to the public health, it can possibly draft a law prohibiting them.

“If the [supervisors] committee wishes to pursue the subject,” said the city attorney gently, “it should consult with competent medical authority.”

The issue had been brought to the Board by an alarmed citizen who urged them to outlaw bare feet for the protection of the walker.

O’Connor pointed out that no law could be adopted to protect barefooted persons from the dangers of street and sidewalk, but only to protect the general public from disease or injury.

We can see there that the city attorney is quite familiar with the limitation on the police power.

I tried to bring that up in my original Library lawsuit, back in 2002, but it didn’t help at all. Here’s some of what I wrote in one of my briefs, reminding them of that limitation:

• Motorcycle helmet laws, justified by the risk to the public if the motorcycle driver gets hit in the head by an errant rock and loses control of the vehicle, and by the cost to society of dealing with the sort of massive head injury that could result in from an accident. See, e.g., State v. Craig, 19 Ohio App.2d 29, 249 N.E.2d 75 (Ohio App. 1969) (“* * * a motorcyclist who loses control of his vehicle because he is struck on his bare head by an object, constitutes a hazard to other users of the highway who may be struck by a motorcycle which has gone out of control.”). State v. Lombardi, 241 A.2d 625, 627 (R.I. 1968) (“we are not persuaded that the legislature is powerless to prohibit individuals from pursuing a course of conduct which could conceivably result in their becoming public charges.”).

• Indoor public cigar smoking regulations, justified by studies on the dangers to others of second-hand smoke. See Beatie v. City of New York, 123 F.3d 707 (2d Cir. 1997) (“[N]o reasonable jury could fail to find that there was a conceivable basis upon which the City Council might believe that second-hand cigar smoke could be harmful to nonsmokers. Consequently, placing limits on cigar smoking is rationally related to the government’s legitimate interest in protecting the health of its citizens.”).

• Jaywalking laws, justified as protecting the general public from the hazards of pedestrians unexpectedly crossing busy streets. See Columbus v. Truax, 7 Ohio App.3d 49 (Ohio App. 1983) (“the city’s vigorous efforts to stop jaywalking * * * protects motorists and pedestrians from the hazard presented by pedestrians crossing busy thoroughfares unexpectedly.”), which, however, overturned an ordinance prohibiting walking on the left side of a crosswalk, saying “If such an ordinance contributes to the public health, safety, morals or general welfare of Columbus, the city could reasonably argue that virtually any ordinance it adopts that controls the activities of its citizens is a constitutional enactment.”

• Automobile seat belt laws, justified as helping the driver maintain control of his vehicle, thereby protecting the public, and protecting the driver from possible well-documented severe injuries requiring state resources. See State v. Batsch, 44 Ohio App.3d 81 (Ohio App. 1988) (“It not only saves lives, but it promotes the welfare of its citizens since the results of death or severe injuries often lead to the state’s providing long-term care at taxpayers’ expense to those injured. In addition, the wearing of a seat belt secures a driver in his seat making it easier for him to retain control of his motor vehicle and thus reducing the chances that sudden emergencies on the road may cause him to lose control of his vehicle and collide with other vehicles.”); State v. Kohrig, 498 N.E.2d 1158, 113 Ill. 2d 384, 101 Ill. Dec. 650 (Ill. 1986) (“The legislative debates clearly indicate that the legislators believed that safety-belt use would protect persons other than the belt wearers by helping drivers to maintain control of their vehicles, and that the law would promote that economic welfare of the State by reducing the public and private costs associated with serious injuries and deaths caused by automobile accidents.”); Richards v. Texas, 743 S.W.2d 747 (Tex. 1987) (“In the present case, there is evidence that the Texas seat belt law serves the public safety and welfare by enhancing a driver’s ability to maintain control of his vehicle, and by reducing injuries not only to himself, but also to others, all of which directly affects the state’s economic welfare.”).

• BASE jumping (parachuting off Buildings, Antennas, Spans, and Earth) regulations, justified as removing the risk to those below. See United States v. Albers, 226 F.3d 989 (9th Cir. 2000) (“The safety threat implicated in BASE jumping is most often the potential harm to the jumper due to the fatalities and injuries characterizing the extreme sport. We do not, however, discount the safety risks of BASE jumping posed to members of the public, particularly in areas where people are likely to congregate * * *. We therefore affirm the district court’s determination that BASE jumping can create a risk of harm to the public.”)

Of course, there is no comparable risk from barefoot people. Even if you buy into the idea that walking barefoot in a library is somehow dangerous, that is not a danger to any of the other patrons.

This line of reasoning has not helped me at all in my court cases. In fact, it has gotten worse as time has gone on (it has also gotten worse as my cases have gone from Federal judges to State judges).

These days, as we saw when the trial judge ruled against me in my suit against the Fairfield County Library, he was perfectly satisfied that a barefoot rule protecting me from the remote possibility of stepping on a staple, and the even remoter possibility of that I could get some sort of horrible infection because of it. No way does that fall under the power of the state to make police power regulations.

What we are seeing here is the busybodification of America. And even judges buy into it.