Thursday, February 1, 2007

On Hoax Devices

Frustratingly, but unsurprisingly, a good deal of the coverage of the Boston Mooninite Attack mentions the "hoax device" charge without providing the legal definition. From Massachusetts General Laws Chapter 266 Section 102A 1/2: (b) For the purposes of this section, the term "hoax device" shall mean any device that would cause a person reasonably to believe that such device is an infernal machine. For the purposes of this section, the term "infernal machine" shall mean any device for endangering life or doing unusual damage to property, or both, by fire or explosion, whether or not contrived to ignite or explode automatically. For the purposes of this section, the words "hoax substance" shall mean any substance that would cause a person reasonably to believe that such substance is a harmful chemical or biological agent, a poison, a harmful radioactive substance or any other substance for causing serious bodily injury, endangering life or doing unusual damage to property, or both. So, basically, the men placing the devices broke the law only if a reasonable person would believe that they were bombs or some other comparable weapon (and if all other legal requirements are met). But people in nine other cities had no problem recognizing them as non-bombs. That doesn't conclusively exonerate the sign-placers, but I think it makes for a pretty hard case on the state's part. Adding: "Reasonableness," for the non-law-people out there, is simply a legal contrivance that lets the state treat difficult, situation-specific normative questions as questions of fact and shunt them off to a jury. It's classically used in the tort context. What's the appropriate amount of care? The amount a reasonable person would exercise, of course! Duh! What makes this case so interesting is that it poses the question of how much our hypothetical "reasonable person" has been affected by the so-called "new normal" state of affairs vis-a-vis terrorism. Would a reasonable person, in 2007, think those things were bombs? What about in 2003? What about in 2000? Adding 2: Looks like the state is facing an even tougher mens rea requirement... Judge Paul K. Leary told Grossman that, according to law, the suspects must intend to create a panic to be charged with placing hoax devices. If that's an accurate statement of the law, I wouldn't want to be the prosecution. Adding 3: Yep, there's a clear and stringent mens rea requirement in the statute: (a) Whoever possesses, transports, uses or places or causes another to knowingly or unknowingly possess, transport, use or place any hoax device or hoax substance with the intent to cause anxiety, unrest, fear or personal discomfort to any person or group of persons shall be punished by imprisonment in a house of correction for not more than two and one-half years or by imprisonment in the state prison for not more than five years or by a fine of not more than $5,000, or by both such fine and imprisonment. Emphasis added.

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