‘Ignorance of the law is no excuse’ leads to bureaucratic nightmares

The Boston Globe reports the nightmare that a small New Hampshire retailer experienced when he caught the eye of bureaucrats at the U.S. Fish and Wildlife Service. Paul Swope attempted to import dream catchers, lamps, and jewelry boxes from Asia and Africa to sell in his store. Things turned south when the feathers used to make the dream catchers drew the attention of federal bureaucrats.

What followed was a bureaucratic odyssey unlike anything Swope had seen during his 16 years in business, a saga that would eventually cost him many thousands of dollars, significant time, and even more aggravation — and leave him wondering whether he would continue running his shop.

Apparently, he needed a $100 permit to import these particular feathers and, not knowing about the permit requirement, hadn’t applied for one. He could prove that the feathers had been properly harvested and sanitized, but the obstinate bureaucrats insisted that he either remove them from the country or pay to store them while they spent 60 days to process the permits. The bureaucrats also demanded that the lamps be incinerated, even though Swope would eventually be able to get a letter from the supplier showing that they too were legal. Finally, the bureaucrats seized nearly 300 jewelry boxes because they contained Mother-of-pearl, which cannot be imported without first declaring it to the Fish and Wildlife Service. Like just about everyone else in the country, Swope didn’t know about that requirement and thus didn’t submit the proper paperwork.

Ultimately, higher-ups in the bureaucracy decided to allow him to keep the jewelry boxes, after giving him a stern lecture about all of the regulatory requirements that he’d have to comply with in the future.

This story is, sadly, all too common today. It highlights three fundamental problems with the power that countless federal bureaucrats wield over all of us: (1) “Ignorance of the law” has been perverted into a means of punishing us at random for innocent acts that we had no reason to think might violate a regulation; (2) Bureaucrats grossly overreact when you fail to fill out the paper work that you have no idea you might need and they make little effort to advertise; and (3) The most important factor in determining whether the government will punish you and how severely is which bureaucrat happens to be reviewing your case. This post will focus on the first of those, but I’ll have more to say on the others later this week. [Update: Part 2 is here and Part 3 here.]

I’m sure you’re familiar with the expression “ignorance of the law is no excuse.” This is an ancient common law principle that is a reasonable rule for traditional crimes. For instance, if someone commits a murder, we don’t much care whether they knew that there was a law forbidding it. Murder itself is such a heinous act that anyone who commits it should know that they’re doing wrong, regardless of whether they know there’s a specific law forbidding it.

Although that rule makes perfect sense for traditional crimes, which are inherently wrong, it makes absolutely no sense for regulatory crimes. The premise that a person should know right from wrong has little to say about whether paperwork is needed to import a particular species of chicken feather, how many peaches must be in a can, or whether you can stop for anything other than gas while driving pumpkins through Brownsville, TX.

As the number of regulatory requirements has exploded, the expectation that people know everything that is required of them has become a laughable absurdity (or at least it would be laughable if these regulations weren’t backed up by criminal punishment). Instead, the rules that apply to us are too numerous, complex, and poorly advertised for any of us to have a chance.

Renowned criminal defense attorney Harvey Silverglate famously estimated that we all unknowingly commit three felonies a day because of the overwhelming number of obscure and counterintuitive regulations. When that’s the case, we’re essentially all at the whims of bureaucrats. If they want to find some reason to go after us, they probably can.

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