Originally Posted by
Another Kevin
Surely! Let me just state one general principle of law, and then be quiet. I argue that it is a principle that applies broadly on the trail as in everyday life. Stating it comes close to being a political discussion only because law is inextricably intertwined with the politics that create it.
A bedrock principle of law in our society is that it is created by the Legislature, enforced by the Executive, and interpreted by the Judiciary. The Executive has no power to create law beyond what the Legislature has delegated to it. And law is not law until it is promulgated: we as citizens have a right to know the metes and bounds of what is legal.
How would I apply this to a shutdown? In the event that a shutdown closes the national parks, the A-T outside NPS lands (for example, on easements on private land, in state parks, or in USFS lands) remains in a legal grey area with no Judicial precedent to guide it - we have little legal experience with the impact of a Federal shutdown on trail easements. If an actual landowner announces closure, I shall respect the landowner's rights.
If Federal agents attempt to close a trail easement without legislation mandating it, or without at least notice of the closure either in the Federal Register or posted according to State requirements near the point where I enter, then I (if I can find the time to get away) fully intend to enter on the grounds that no law forbids it and that I as a member of the public can presume a right of entry. (Note that trail easements are granted to the public, not to the government.) In short: I believe myself to be breaking no law.
If a Federal agent claims that I am wrong, then the legal precedent on trespass is generally that it does not take place until the intruder knows (by being directly ordered to depart) or ought to know that he is trespassing. If he ought to know, it is by virtue of notice being posted, or by presumption that one may not enter a dwelling or its curtilage without permission. So the worst that ought to happen - given that notice has not been published nor posted that the public is excluded - is that the Federal agent orders me to depart, and I am not a trespasser until and unless I fail to comply and depart by the most expeditious route. Which, of course, I shall do. I find it highly unlikely that a jury would find against me. (As a practical matter, I also find it unlikely in the event of a shutdown that there would be the staff available to police the grey area, but that's not really relevant: I'm staying on the right side of the law at all times, as far as I can tell.)
Any discussion of the arguments that a prosecutor might advance to convince a jury otherwise would stray into forbidden realms of politics. But a prudent challenger to the "law" should be warned that a likely outcome is that the "trespasser" will be haled into court to face stand-alone charges of "resisting arrest," "disorderly conduct," or "aiding and abetting," with no underlying charge to justify the "arrest," no lawful order disobeyed by the "disorderly" conduct, and no actual crime being "abetted." Those who wish to avoid defending against such charges should behave accordingly.
In short, I am not advocating lawbreaking, because I do not intend to be, nor advise others to be, anywhere that we are ordered to stay out of. I therefore hold that any law I plan to break is, in fact, no law at all.
I view this discussion as analogous to an earlier one in which I remarked that, while New York has no state law prohibiting hitchhiking, many counties - including all but one that the A-T traverses - forbid it, and New York's drivers' manual states, erroneously, that it is unlawful to pick up hitchhikers. Which makes hitching difficult in New York because "everyone knows it's illegal" (including the local cops!), even though the legislature has never seen fit to pass such a law.
Legally: "There's no law against it." Practically: "The nonexistent law is still widely enforced as if it existed." Politically: "Proceed as you find principled and prudent, in light of the legal and practical considerations. It would be inappropriate for me to advocate a position here."
