One our favorite subjects in recent memory: is Santa's method of present delivery... legal?
Is Santa trespassing?
Is he breaking and entering?
Are these criminal issues, or civil ones?
Transcript
Archival: Now you give us the facts of the case. One can be found guilty.Of reckless driving in a number of different ways. Intentional infliction of emotional distress and illegal entry without the homeowners permission.
Archival: Hundreds of thousands of dollars in employment taxes ...We would make such a finding of burdening interstate commerce, presumably because we believe we have the capacity to figure out what is interstate commerce..we'll that's how we do it in the North Pole..well, that's not how we do it here. Santa Claus is FINISHED
Nick Capodice: You're [00:00:30] listening to Civics 101. I'm Nick Capodice.
Hannah McCarthy: I'm Hannah McCarthy.
Nick Capodice: And today on our podcast that explores the basics of how our democracy works, we answer a listener question. Elijah Grosvenor wrote us and asked, Would Santa be breaking the law when he enters your house through the chimney? Would he be a stalker because he knows everything that you do? In short, Hannah, is Santa a criminal?
Hannah McCarthy: The People versus Santa Claus, [00:01:00] also known as Saint Nick. Kris Kringle Pere Noel.
Nick Capodice: Babbo Natale, Father Christmas.
Hannah McCarthy: Do you remember in The Lion, The Witch and the Wardrobe when Santa just shows up?
Nick Capodice: It was like, Well, I guess Santa is here! And he's got a sword.
Now for your presents. Mrs. Beaver!
Nick Capodice: Gave that Mrs. Beaver a brand new sewing machine, if I recall correctly, anyways. The city fathers may cluck their tongues and cry, What [00:01:30] has this to do with civics? But, Hannah, I swear, this question begs a thorough investigation of how some laws apply to us. We're going to talk about trespassing, burglary, stalking, and also criminal versus civil cases, tort law, the commerce clause. And finally, how a legal professional might defend the jolly old elf were he to be on trial.
Hannah McCarthy: Can we start with that first violation? Santa comes into your house. Is he trespassing?
Nick Capodice: Well, [00:02:00] let's approach the entirety of Santa entering your home. And to do this, we're going to look at at least three possible offenses.
Colin Miller: Right. So trespass would be entering someone else's property without permission. And so on the one hand, you could say, sure, Santa's trespassing, and the other you could say there's implied consent or an implied license.
Hannah McCarthy: Colin Miller!
Nick Capodice: Yeah, that's right. I needed a legal hard hitter for this episode, so I reached out to Colin [00:02:30] Miller. He teaches criminal law and evidence at the University of South Carolina School of Law.
Hannah McCarthy: I have heard Colin say that so many times because I used to edit the podcast that he co-hosted. Undisclosed Addendum. What is an example of implied consent or license?
Colin Miller: Like if I'm having people come into my home to do plumbing work or to do carpentry, etc., If I'm welcoming Santa in even without explicitly doing so, I'm leaving out milk and cookies. I'm welcoming him in. Then in that case, it [00:03:00] wouldn't be trespassing.
Hannah McCarthy: So the act of leaving milk and cookies and writing to Santa earlier that year could be argued as implied consent for his entering your home.
Nick Capodice: Right. And if we're talking trespassing, that's not him just coming into your house. Trespassing is somebody coming into the four corners of your property lot.
Hannah McCarthy: Does that include the air above your house?
Nick Capodice: Oh well, you know, we have to do an episode on who owns the air, who rules [00:03:30] the skies. But as of right now, the US Supreme Court hasn't ruled on a definitive number of feet above your property. That is yours, but it is generally accepted to be anywhere from 80 feet to 500 feet.
Hannah McCarthy: So if you fell from the sky and landed on somebody's house, could that be trespassing?
Colin Miller: Not necessarily. And this is interesting. There's a defense to trespassing called necessity. And so imagine you're flying a hot air balloon and all of a sudden it starts [00:04:00] malfunctioning.
Nick Capodice: I think we're going down! Nigel, we descend!
Colin Miller: And you land on someone's property. That would typically be trespassing. But you claim necessity. I was going to die unless I landed this hot air balloon. So, yeah, if Santa lands the sleigh on top of the house again, assuming there's not consent by the homeowner, which there might be, that could be considered trespassing.
Hannah McCarthy: All right. We've got the sleigh on the roof. Now let's go down the chimney. Is that breaking and entering? [00:04:30]
Nick Capodice: Not anymore. Not in most states.
Colin Miller: So breaking and entering is kind of the old common law crime that's become burglary, although some states still have breaking and entering. And even though it's called breaking and entering, it's not necessarily breaking something as much as moving something like opening a window, etc.. And so my question is, how does Santa operate when he enters the chimney? Is he actually moving something? Is he causing damage or magically is he going down the chimney and not causing damage? So breaking and entering probably [00:05:00] not.
Hannah McCarthy: Wait breaking and entering is not a thing anymore.
Nick Capodice: No, the breaking part has been removed in the majority of our country, so we have to consider Santa as a potential burglar.
Colin Miller: There are still some states that have breaking and entering, but for the most part it's been replaced by burglary. No. So burglary is entering the dwelling of another with the intent to commit a felony or theft inside. Meaning if I break into someone's home and I plan to steal their Monet painting and I'm caught before I [00:05:30] do so I'm still guilty of burglary because I had the intent to steal it. When I enter, Santa is giving gifts. The only thing he's doing in the home would be maybe drinking the milk and cookies. But again, that sort of offered to him, right? He's not taking that without consent that's being given to him by the homeowners.
Hannah McCarthy: All right. Now, this brings us back to the question of the day. Is Santa a criminal? Are these crimes?
Nick Capodice: I'm so glad you asked that, Hannah. I had call and [00:06:00] break down the difference between a civil and a criminal case.
Colin Miller: So criminal law is every state has criminal statutes. They prescribe, prohibit certain behavior, murder, trespassing, arson et cetera. And if the prosecution in a state believes you violated a criminal law and they can prove it beyond a reasonable doubt, they represent the state, the people, and your punishment would be typically imprisonment. It could be a fine, it could be restitution, [00:06:30] etc.. And then the civil system would be I, as an individual, am suing for damages. Monetary damages based upon harm caused to me individually.
Nick Capodice: Trespass can be civil or criminal, and burglary is almost always criminal.
Hannah McCarthy: And what defines a felony?
Nick Capodice: Believe it or not, it is the punishment.
Colin Miller: For criminal violations, we have a dichotomy. We have misdemeanors and we have felonies. And so, for instance, at the federal level, a misdemeanor [00:07:00] is defined as a crime with a maximum punishment of one year or less. So it's a lesser punishment felony. The maximum punishment is more than a year. And so that designation of the severity of the crime.
Hannah McCarthy: So if Santa is found guilty of a criminal violation, he could face fines or imprisonment. But if it's a civil violation, he could be sued.
Nick Capodice: Yes. And this is an area of law that is called tort law.
Hannah McCarthy: Tort?
Nick Capodice: Do you know anybody who went to law school?
Hannah McCarthy: Yes.
Nick Capodice: And [00:07:30] you ever heard somebody say like, oh, I got torts at 5:00 tomorrow?
Hannah McCarthy: Not specifically, but I have heard them talk about tort law. Do you know what tort law is?
Nick Capodice: No, I don't. But I do know somebody who does. And as it is the holiday season, I think we should just give her a quick call.
Hannah McCarthy: Oh, I know who this is.
Cami Capodice: Hey, little brother.
Nick Capodice: This, by the way, is my older, smarter lawyer sister, Cami. Everyone should have a lawyersister. You went to law school, right?
Cami Capodice: I did. I did.
Nick Capodice: Can [00:08:00] you tell us what a tort is?
Cami Capodice: A tort? Yeah. Well, the amateur baker and me wants to say it's a cake. I guess you want the legal definition. Yeah, Well. Well, the legal definition of a tort is an act or omission that gives rise to injury or harm to another. And it amounts to a civil liability as opposed to criminal liability. I think the example that most of your listeners will probably be familiar with is [00:08:30] a car accident, right? Or a slip and fall, something like that.
Nick Capodice: Did you enjoy like studying torts when you were in law school?
Cami Capodice: Yes, it was actually my favorite subject. It's different from a crime. So there is some overlap between torts and crimes, and I'm probably getting a little too in the weeds on that. But when I said civil liability and the definition of tort, what I meant by that was that it's a monetary damages are awarded as opposed to what we think of punitive damages, [00:09:00] like having to go to jail for a crime.
Nick Capodice: Okay. Thank you, Cami for answering my question. I've wanted to know that for a long time.
Cami Capodice: You're most welcome.
Nick Capodice: All right. Love you.
Cami Capodice: Love you, too.
Hannah McCarthy: Okay, so how could Santa be prosecuted under a tort?
Nick Capodice: There is a tort called IIED or an NIED that is intentional or negligent infliction of emotional distress.
Colin Miller: So that would not be a criminal act. But yes, [00:09:30] you could have the family of the naughty kid getting coal suing Santa if they could establish that he caused their child's emotional distress.
Hannah McCarthy: I know we got to take a break, but I have one more civil case hypothetical,
Nick Capodice: Shoot.
Hannah McCarthy: It's funny you should say that, because let's say Santa gives a child a bb gun for Christmas.
Hannah McCarthy: This child wrote Santa and asked for it. They maybe [00:10:00] sat on his lap in a department store and asked for it. The kid gets the BB gun, shoots it and knocks his glasses off.
Archival: Oh, no. Where are my glasses?
Hannah McCarthy: Can Santa be considered liable here?
Nick Capodice: No, he cannot. Once a gift is given, it is the property, sole property of the giftee. Now, this hypothetical child could sue the Red Ryder BB gun manufacturing company and say that there were insufficient warnings about recoil. But in this case, Santa is totally off the hook. [00:10:30] And yes, we are going to take a short break, but when we're back, we're going to get into the complicated web of interstate and international commerce when it comes to the man with the bag.
Hannah McCarthy: But first, it is the holiday season
Nick Capodice: A Hickory dock
Hannah McCarthy: And if you are in the giving vein, our show is listener supported and we would be most appreciative of a tax deductible gift which you can make by clicking on the link in our show notes or at the top of our website, civics101podcast.org. [00:11:00]
Hannah McCarthy: We're back. We're repurposing every free music bed we can find that has sleigh bells in it because we are answering a listener's question. Is Santa a criminal? Now, Nick, we've covered the domicile part. But I want to know about another thing our listener brought up. Stalking and voyeurism. [00:11:30]
Colin Miller: Right, Right. Going to find out if you're not here. Nice, right?
Nick Capodice: Again, this is Colin Miller, law professor at the University of South Carolina School of Law.
Colin Miller: Depending on the state again. Right. The stalking is a crime. Voyeurism is a crime. They have all different elements. But Right. If you're having Santa monitoring 24 seven around the year to find out if the kids are naughty or nice, that could constitute voyeurism in terms of stalking. That would be about causing [00:12:00] harm or mental distress, etc., which that's not Santa's goal.
Hannah McCarthy: But again, as we heard earlier, giving a kid goal or nothing at all could be infliction of emotional distress.
Nick Capodice: Yeah, but that that's a bit of a stretch. However, there is a far greater possibility of violation if we look at Santa through the legal lens of surveillance. And we say this all the time in our show, but in this instance, it really matters when we go state to state, we are talking about consent [00:12:30] to be recorded. And since you and I work in radio, we think about this a lot.
Hannah McCarthy: Well, we think about this a lot because as journalists, it's never really a question as to whether or not we should ask for consent. But there is this idea of a one party consent or two party consent state.
Nick Capodice: Right. And journalists or not, here in New Hampshire. We are in what's called a two party consent state. We are one of 13 states that have some manner of two party or all party consent. We have to let the person that we're recording know through words or implication [00:13:00] that we are recording them. Now, the other 37 states are called one party consent states.
Hannah McCarthy: Meaning that if I am in Wisconsin or Georgia or New York, I could record audio or video of someone without their consent.
Nick Capodice: Yes, but your intent matters here. It's against the law to record somebody with an intent to blackmail or commit another crime. And there's a big exception here. You can't be recorded somewhere where you have the, quote, expectation [00:13:30] of privacy.
Hannah McCarthy: Right. Like a store can have a security camera behind the cash register, but not in the changing rooms or the bathroom.
Nick Capodice: Yeah, and I can't set up a camera from my house into my neighbor's bedroom because that would be a violation of their privacy.
Hannah McCarthy: So let's bring this around to Santa. I kind of feel like this one could be the definitive mark against Kris Kringle if he knows when you're sleeping. Is he in your bedroom?
Nick Capodice: My only counterargument to that is that we don't have evidence of illegal surveillance. [00:14:00] You know, he sees you when you're sleeping and he knows when you're awake, but we don't know how. He knows that. We're in another legal realm here. This is one of super powers, and there's not a lot of case law around that.
Hannah McCarthy: All right. Let's move this sleigh along to a very different legal world. Interstate commerce.
Nick Capodice: Yeah. Is Santa's skirting taxes or tariffs by a hauling that sack of toys hither and yon. Because as we've heard before, Hannah, things can get a little dicey whenever you cross [00:14:30] state lines.
Colin Miller: He is obviously crossing state lines and international lines, etc.. But in terms of commerce and commerce clause, he is not seeking compensation unless you unless you consider the milk and cookies, compensation for him giving gifts and showing appreciation. So that would then trigger the Commerce clause and he would have to declare the items that he is bringing in to sell. So yeah, I guess you could have a violation there.
Nick Capodice: And real quick to anybody out there who's heard of the Commerce Clause but isn't exactly sure what it is. Here [00:15:00] is a brief primer.
Colin Miller: Commerce Clause is all about the government regulating interstate commerce. So among the states and this sort of go with the classic Supreme Court case, and this is Wickard versus Filburn, which is a person growing wheat in their backyard. And that was like the Paradigm Commerce Clause case from a century ago that sort of been refined.
Archival: Now, the possession, the regulation of possession is so necessary to the prohibition of marijuana [00:15:30] in interstate commerce, the Congress should be able to reach it just as it was able to reach the growing of wheat in Wickard. That's the question that needs to be answered.
Colin Miller: But yeah, certainly if you were to say in this case that Santa is exchanging gifts for milk and cookies, then in that case he's going to have to deal with customs laws and everything regulating conducting a business internationally and across the states.
Hannah McCarthy: So Santa could be busted for tax evasion. [00:16:00]
Nick Capodice: That's how they got Capone.
Hannah McCarthy: You're not seriously equating Santa to Al Capone?
Nick Capodice: No, I'm not. But it's easy for us to just throw out the milk and cookies as incidental. But they keep coming up. They are part of the implied consent to enter the house, and they could turn his actions into those of a transactional nature.
Hannah McCarthy: How many people does Santa visit?
Nick Capodice: Well, that's a really tough number. There was a great article from the Washington Post that I read called The Breathtaking Scale of Santa Claus's Task on Christmas [00:16:30] Eve, which took into account ages of children across the world, religions, celebration of Christmas, even among those who don't practice Christianity. And their rough estimate is about 530 million children across the world. Now, that's going to be at least a billion cookies and about 3.6 million gallons of milk.
Hannah McCarthy: So Santa's real superpower is the ability to process that much dairy. I'm glad we brought the world wide perspective in here because I have always [00:17:00] wondered who governs the North Pole?
Nick Capodice: Everybody and nobody. Hannah. The North Pole is not land, it is ice. So therefore it is governed by the Law of the Sea. A treaty from 1982 which about 150 countries signed. Every single country that touches the Atlantic Ocean may claim ownership of the North Pole.
Hannah McCarthy: Seriously. So you can't if you're an inland country, you can't claim ownership of the North Pole. That's so silly. [00:17:30]
Nick Capodice: Well, you're owning a little part of the ocean, you know. And this matters when we look into our next issue. Does Santa violate any labor laws?
Colin Miller: It's like in the US we have OSHA, which is about workplace safety. We have FLSA, which is about labor standards. And whether you're, you know, obviously what are elves and how much are they working? Is this child labor around Christmastime? Are they violating labor laws by having them work too long and too hard? What's the workplace [00:18:00] like there? All of those could potentially be issues for Santa. Yeah, obviously, if there were complaints lobbied against Santa and the North Pole, you could have people coming in and determining, is this a safe workplace? How many hours per week are they working? How much are they being paid to Santa have money? Is minimum wage implicated? You know, there's all sorts of things that come into play if they're under US jurisdiction, if it's not. What law actually governs the North Pole? Unclear.
Nick Capodice: Before [00:18:30] we finish up, I just want to say. Yeah, all of this is pretty wishy washy. And that's kind of how the law works, isn't it?
Hannah McCarthy: Yeah, I know. We cannot ever answer a listener question without saying. Well, it depends.
Nick Capodice: Well, it depends. That said, Collin laid out one charge against Santa. That's pretty ironclad.
Colin Miller: There's the song about Grandma got Run Over by a Reindeer.
Hannah McCarthy: I despise [00:19:00] that song.
Nick Capodice: You do? Yeah, I do, too. I hate, I hate. I hate Peter Pan. But not as much as I hate that song. But we've got to bring it up because according to the song, Grandma did get Run Over by a Reindeer.
Colin Miller: Assuming that's true and the kid singing it says it happened walking home to our house on Christmas Eve, Santa would probably be guilty of [00:19:30] involuntary manslaughter. You know, going back, he is reckless now or he is negligent. He caused the death of grandma. And so if that song is right, that's involuntary manslaughter.
Hannah McCarthy: Okay. So let's assume that Santa is charged with any or all of these criminal and civil violations. He comes into court. What would his defense be?
Nick Capodice: Well, I asked Colin if you were charged with representing Santa. What would you ask him before the trial?
Colin Miller: I don't know that I need to ask him anything because I think [00:20:00] I kind of know what his M.O. is and what he's doing. What I would try to do within the bounds of the law. Which is interesting because you're in New Hampshire. I think New Hampshire is the only state that advises and informs jurors explicitly about jury nullification.
Hannah McCarthy: What is jury nullification?
Colin Miller: So jury nullification says even if the state proves all of the elements of a crime beyond a reasonable doubt, jurors have the inherent ability to nullify and say, [00:20:30] I think this is an unjust prosecution. I'm going to find the defendant not guilty.
Hannah McCarthy: So this means getting a jury to vote a certain way regardless of whether the defendant is guilty.
Nick Capodice: Yeah, and this is quite rare, but this is you saying to the jury, look, yeah, my client did these things. That has been proven, but they shouldn't be punished for it. And I ask you to vote not guilty even though they did it.
Colin Miller: And I think Santa would be the paradigm case of jury nullification of, [00:21:00] look, they're saying he violated these laws. You all know what Santa Claus does. He brings joy, he brings gifts, happiness, hope, etc.. If you were to find him guilty, he would no longer be able to do what he was doing. And it would be awfully tough to find 12 men and women on a jury, none of whom would nullify. Meaning. We have a unanimous verdict of guilt, meaning Santa is shut down. So jury nullification is my huge defense as defense counsel for Santa.
Nick Capodice: So [00:21:30] Santa is off the hook in my books today, Hannah. And my only regret is I couldn't figure out about the legality of owning reindeer because they're owned in the North Pole.
Hannah McCarthy: Right. And the North Pole is owned by everyone. Some countries that perhaps allow reindeer ownership and some that perhaps do not.
Nick Capodice: Can you name all the reindeer?
Hannah McCarthy: Dasher. Dancer. Prancer. Vixen. Comet. Cupid. Donner. Blitzen. [00:22:00] Rudolph the Red-Nosed Reindeer.
Nick Capodice: You missed one.
Hannah McCarthy: No, I didn't.
Nick Capodice: Yes, you did, Olive.
Hannah McCarthy: What's the joke?
Nick Capodice: Olive the other reindeer.
Nick Capodice: Well, that's enough of this huffamaruff. Happy holidays to all you out there from us at Civics 101. For real. This episode is written by me Nick Capodice with Hannah McCarthy. Our staff includes Jacqui Fulton, Christina Phillips as our senior [00:22:30] producer, and Rebecca Lavoie our executive producer. Special thanks always to and for my sister Cami. Movies I quoted in this episode are the BBC version of The Lion, The Witch and the Wardrobe, the Paper Chase and Santa Claus, the movie, all of which I know very well, and can perform on command, and also the Christmas story, which I cannot. Music in this episode by Ryan Kilkenny, Pandaraps, Howard Harper Barnes, Brightarm Orchestra, Timothy Infinite, The New Fools (not the girl by the whirlpool) Dylan Sits, Raymond Grouse, Anthony Earls, KieloKaz, ProletR, and the guy whose albums ALWAYS end up under my tree, Chris Zabriskie. Even [00:23:00] though they hold their heads in shame every time they hear it, Civics 101 is a production of NHPR, New Hampshire Public Radio.
