Probable Claus: Is Santa a Criminal?

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The civic law is finished. You're listening to Civics 101. I'm Nick Capitice. I'm Hannah McCarthy. And today on our podcast that explores the basics of how our democracy works, we answer a listener question. Elijah Groverner 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. The people versus Santa Claus, also known as Saint Nick, Chris Kringle, Per Noel. Babo Natale, Father Christmas. Do you remember in the Lion, the Witch and the Wardrobe when Santa just shows up? Yeah, but he was like, well, I guess Santa's here. And he's got a sword. Now for your presence, Mrs. Beaver. Gave that Mrs. Beaver a brand new sewing machine, if I recall correctly. Anyways. The city fathers make cluck their tongues and cry, what 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? Can we start with that first violation? Santa comes into your house. Is he trespassing? Well, 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. 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. Oh, Colin Miller. Yeah, that's right. I needed a legal hard hitter for this episode. So I reached out to Colin Miller. He teaches criminal law and evidence at the University of South Carolina School of Law. 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? 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 welcome him in. Then in that case, it wouldn't be trespassing. 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. 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. Does that include the air above your house? Oh, well, you know, we have to do an episode on who owns the air, who rules 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. So if you fell from the sky and landed on somebody's house, could that be trespassing? Not necessarily. And this is interesting. There's a defense to trespassing called necessity. And so, you know, imagine you're flying a hot air balloon and all of a sudden it starts malfunctioning. It's deposit. I think we're going down. Now I can wait to send. And you land on someone's property. That would typically be trespassing. You claim necessity. I was going to die unless I landed this hot air balloon. So, yeah, if Santa lands this sleigh on top of the house, again, assuming there's not consent by the homeowner, which there might be, that could be considered trespassing. All right, we've got the sleigh on the roof. Now let's go down the chimney. Is that breaking and entering? Not anymore, not in most states. 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, et cetera. And so 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 not. Wait, breaking and entering is not a thing anymore? No, the breaking part has been removed in the majority of our country. So we have to consider Santa as a potential burglar. 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 fail on your theft inside. Meaning if I break into someone's home and I plan to steal their Monet painting and I'm caught before I do so, I'm still guilty of burglary because I had the intent to steal it when I entered. Santa is giving gifts. The only thing he's doing in the home would be maybe drinking the milk and cookies. But again, that's sort of offered to him, right? He's not taking that without consent. That's being given to him by the homeowners. All right. Now this brings us back to the question of the day. Is Santa a criminal? Are these crimes? I'm so glad you asked that, Hannah. I had Colin break down the difference between a civil and a criminal case. So criminal law is, you know, every state has criminal statutes. They prescribe, prohibit certain behavior, murder, trespassing, arson, etc. 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, you know, restitution, 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. Trespass can be civil or criminal and burglary is almost always criminal. And what defines a felony? Believe it or not, Hannah, it is the punishment. Criminal violations. We have a dichotomy. We have misdemeanors and we have felonies. And so, for instance, at the federal level, a misdemeanor 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. 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. Yes. And this is an area of law that is called tort law. Tort. Do you know anybody who went to law school? Yes. And you ever heard somebody say like, oh, I got torts at five o'clock tomorrow? Not specifically, but I have heard them talk about tort law. Do you know what tort law is? 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. Oh, I know who this is. Hey, little brother. This, by the way, is my older, smarter lawyer sister, Cammy. Everyone should have a lawyer sister. I you went to law school, right? I did. I did. Can you tell us what a tort is? A tort? Yeah. Well, the amateur baker in me wants to say it's a cake. I guess you want the legal definition. Yeah. Well, the legal definition of a tort is an act or omission that gives rise to injury or harm to another and an amount to a civil liability as opposed to criminal liability. I think the example that most of your listeners will probably be familiar with is a car accident, right, or a slip and fall, something like that. Did you enjoy like studying torts when you were in law school? Yes, it was actually my favorite subject. It's different from a crime. So there is some overlap between courts and crimes, and I'm probably getting a little two 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 as punitive damages like having to go to jail for a crime. OK, thank you, Kami, for answering my question. I've wanted to know that for a long time. You're a most welcome. All right, love you. Love you too. OK, so how could Santa be prosecuted under a tort? There is a tort called IID or NID that is intentional or negligent infliction of emotional distress. So that would not be a criminal act. But yes, you could have the family of the naughty kid getting cold, suing Santa if they could establish that he caused their child's emotional distress. I know we got to take a break, but I have one more civil case hypothetical. Shoot. It's funny you should say that, because let's say Santa gives a child a BB gun for Christmas. You know I want to kiss you right at her car when I should you want to get ready my leg off of him. You'll shoot your eye out, kid. This child wrote Santa and asked for it. They maybe 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. My glasses. Now where are my glasses? Can Santa be considered liable here? 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 Rider BB Gun Manufacturing Company and say that there were insufficient warnings about recoil, but in this case Santa is totally off the hook. 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. But first, it is the holiday season. A hickory dock. 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. So food delivery services have been around for a while and I've tried a lot of them and I loved some and I hated others. I will say that GreenChef is the trusted authority on clean eating. They deliver only real farm sourced ingredients. So for my choice, I chose the Mediterranean option because I want to live another 1000 years. And the standout to me was the fish. Oh, I've had so much trouble fish in my life. 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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. Right. Right. Going to find out if you're not your nice, right? Again, this is Colin Miller, law professor at the University of South Carolina School of Law. Depending on the state again, right? Those 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 not your nice, that could constitute voyeurism. In terms of stalking, that would be about causing harm or mental distress, et cetera, which that's not Santa's goal. But again, as we heard earlier, giving a kid coal or nothing at all could be infliction of emotional distress. 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 to be recorded. And since you and I work in radio, we think about this a lot. 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. Right. And journalists are 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 that we are recording them. Now, the other 37 states are called one party consent states, meaning that if I am in Wisconsin or Georgia or New York, I could record audio or video of someone without their consent. 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 of privacy. Right. Like a store could have a security camera behind the cash register, but not in the changing rooms or the bathroom. 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. So let's bring this around to Santa. I kind of feel like this one could be the definitive mark against Chris Kringle if he knows when you're sleeping. Is he in your bedroom? My only counter argument to that is that we don't have evidence of a legal surveillance. 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 superpowers and there's not a lot of case law around that. All right. Let's move the sleigh along to a very different legal world. Interstate commerce. Yeah. Is Santa skirting taxes or tariffs by hauling that sack of toys hither and yon? Cause as we've heard before, Hannah, things can get a little dicey whenever you cross state lines. He is obviously crossing state lines and international lines, et cetera. But in terms of commerce and commerce clause, he is not seeking competency 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 into sale. So yeah, I guess you could have a violation there. And real quick to anybody out there who's heard of the commerce clause, but isn't exactly sure what it is. Here is a brief primer. Commerce clause is all about the government regulating interstate commerce. So among the states. And the sort of guy that the classic Supreme Court case in this is Wichord versus Philbourne, which is a person growing wheat in their backyard. And that was like the paradigm commerce clause case from century ago that sort of been refined now. The possession, the regulation of possession so necessary to the prohibition of marijuana in interstate commerce, the Congress should be able to reach it just as it was able to reach the growing of wheat in Wichord. That's the question that needs to be answered. 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. So Santa could be busted for tax evasion. It's how they got Capone. You're not seriously equating Santa to Al Capone. 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. How many people does Santa visit? 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 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. So Santa's real superpower is the ability to process that much dairy. I'm glad we brought the worldwide perspective in here because I have always wondered who governs the North Pole. 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. Seriously, you have so you can't, if you're an inland country, you can't claim ownership of the North Pole. That's so silly. 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? It's like US, we have OSHA, which is about workplace safety. We have FLSA, which is about, you know, labor standards and whether you're, you know, obviously what are L's and how much are they working? Is this child labor around Christmas time? Are they violating labor laws by having them work too long and too hard? What's the workplace like there? You know, all 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? Does Santa have money? Is minimum age 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. Before 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? Yeah, I know. We cannot ever answer a listener question without saying, well, it depends. Well, it depends. That said, Colin laid out one charge against Santa. That's pretty ironclad. There's the song about Grandma got run over by reindeer. It despises that song. 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. Assuming that's true and the kid singing it says, you know, happened walking home to our house on Christmas Eve, Stan would probably be guilty of involuntary manslaughter. You know, going back, he is reckless now where he is negligent. He caused the death of Grandma. And so if that song is right, that's involuntary manslaughter. OK, 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? Well, I ask Colin, if you were charged with representing Santa, what would you ask him before the trial? I don't know that I need to ask him anything because I think 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. Wait, what is jury nullification? So jury nullification says, even if the state proves all the elements of a crime beyond a reasonable doubt, jurors have the inherent ability to nullify and say, I think this is an unjust prosecution. I'm going to find the defendant not guilty. So this means getting a jury to vote a certain way, regardless of whether the defendant is guilty. 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. And I think Santa would be the paradigm case of jury nullification of, 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 unanimous verdict of guilt, meaning Santa is shut down. So jury nullification is my huge defense as defense for Santa. So Santa's off the hook and 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. Right. And the North Pole is owned by everyone. Some countries that perhaps allow Reindeer ownership and some that perhaps do not. Can you name all the Reindeer? Dasher, Dancer, Prancer, Vixen, Comet, Cupid, Donner, Blitzen. And I'm not sure if you know what I mean. I'm not sure. I'm not sure. Prancer, Vixen, Comet, Cupid, Donner, Blitzen. We're off the Red Nose Reindeer. You missed one. No, I didn't. Yes, you did. Olive. What's the joke? Olive the other reindeer. Hi. Well, that's enough of this Huff and Maruff. 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 Jackie Fulton, Christina Phillips, his senior producer and Rebecca LaVoy, our executive producer. Special thanks always to and for my sister, Cammie. 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, Panda Raps, Howard Harper Barnes, Bright Arm Orchestra, Timothy Infinite, the New Fools, not the girl by the Whirlpool, Dylan Sitz, Raymond Grouse, Anthony Earle's, Keylo Caz, Proletor and the fellow whose albums are always under my tree, Chris Zabriski, even though they hold the heads in shame every time they hear it. Civics 101 is a production of NHPR, New Hampshire Public Radio. Sometimes it feels like red and blue states are just as divergent as post World War Two, East and West Germany. So what can the US learn from German political history in order to create a more perfect union? 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