Price gouging is a service, not a crime

I went to the hardware store after the snowstorm hoping to score some ice melt, only to discover that it’s all sold out.  I only needed one bag and I’d have gladly paid more to get what I needed.

The thing that really frosts me is that the reason I could not get ice melt was because politicians know they can win votes by creating the crime of price gouging.

The anti-Price Gouging law

I can’t explain it any better than does our Missouri attorney general at his website:

It’s against Missouri law to take advantage of a desperate situation by drastically increasing prices on merchandise, whether it’s gasoline, kerosene after winter storm, hotel rooms, ice, gas-powered generators and other necessities.”

He is referring to Missouri’s Unlawful practices statute, which reads:

407.020. 1. The act, use or employment by any person of any  . . . deception, fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment, suppression, or omission of any material fact in connection with the sale or advertisement of any merchandise . . . . is declared to be an unlawful practice.

Violation of this statute is a class D felony.

One may rightly wonder how this law prohibits “price gouging.” It’s because the legislature gave the Missouri attorney general permission to make regulations needed to enforce the law (apparently intending that the attorney general would designate sizes and styles of typefaces acceptable for use in consumer advertising).

Years went by before the attorney general created regulations which would transform this anti-fraud law into what should be called the “Lets-run-out-of-everything-as-fast-as-we-can-when-we-need-it-most” law. The regulation became law and created the crime of price gouging:

15 CSR 60-8.030 Price Gouging

PURPOSE:  . . . this rule enumerates specific practices which are unfair and are violative of section 407.020, RSMo.
(1) It is an unfair practice for any person in connection with the advertisement or sale of merchandise to—
(A) Take advantage of a person’s physical or mental impairment or hardship caused by extreme temporary conditions, and charge a price substantially above the previous market price of the merchandise in seller’s trade area;
(B) Charge within a disaster area an excessive price for any necessity; or
(C) Charge any person an excessive price for any necessity which the seller has reason to know is likely to be provided to consumers within a disaster area.

The law seems to have no purpose except: 1) to soothe the feelings of angry citizens who feel they have been taken advantage of; and 2) to provide the Missouri Attorney General a platform from which he can pose as champion of the consumer.

Harmful effects:

When it comes to helping the rest of us, the law does nothing to insure that we can buy essential goods when we need them most. On the contrary, such price controls guarantee that we will NOT have enough of what we need.

If a disaster strikes, and water, gasoline and food cannot be sold for significantly higher prices, then stores will sell out early as everyone buys more than they need. Then none is left to buy AT ANY PRICE. In addition, it is unlikely anyone will rush to bring in essential supplies when the government has removed the profit incentive.

In an emergency, a hotel manager who doubles his room price on 100 rooms, may force a big family to rent one room instead of two. Or cause two poor families to double up. If such “price gouging” were allowed, the hotel could provide shelter for twice as many people in an emergency. True enough, the hotel owner gets a big payoff, but should that be a crime when it was only his self-interest that put everybody under a roof?

The repeal of price gouging laws would in itself decrease the severity of shortages when they do occur. If merchants knew they could raise prices during shortages, more would take risks and stock up on ice melt and snow shovels. But with no prospect of a payoff, they play it safe and stock just what they are sure they can sell in a typical winter. And if people knew prices could rise greatly during emergencies they might be better prepared, further decreasing the demand in times of shortage.

Some say that the merchant’s sin is greed, but at least the merchant’s self-interest serves the public by keeping goods available. The flip side of the merchant’s greed is the consumer’s envy, which does no one any good, neither housing nor feeding anyone. Is it harsh to say that anti-price gouging laws are motivated by hate? That supporters are people who would rather have NO GAS available at $3.00 a gallon, than have all the gas they want at $5.00? Under this law, half of us can get our gas tanks filled, whether we need it or not, and the other half goes without. This has to be one of the more foolish laws we have, yet most people probably think it’s good.

Missouri’s Attorney General has been aggressive in threatening Missouri merchants with prosecution if they violate these price controls. See Attorney General Koster warns consumers about storm-related price gouging. Koster makes it easy for “victims” to complain at his website:

Click here to rat out greedy businessmen.


For more information about the “wisdom” of price gouging laws:

The Role of Prices- Walter Williams

Price Gouging Saves Lives

The Non-Crime of Price Gouging

Come back with a warrant

Missouri DWI – taking blood without a warrant or consent

Missouri Criminal Defense LawyerOUR Cole County prosecutor, Mark Richardson was in the news this week as he briefed law enforcement on the new DWI law that went into effect on August 28, 2010. The story was that the new law opens the door for Missouri police to to take blood from DWI suspects, without a warrant and without consent. The story is here:

Missouri prosecutors: Warrant not needed for blood test in drunken driving cases

Ironically, the legislature almost certainly did not mean to permit warrantless blood draws. In fact, they removed a provision in the new law that expressly allowed the taking of blood without a search warrant. Nevertheless, whenever the legislature tinkers with the laws (and after 190 years of lawmaking, tinkering is about all that is left), we see unintended consequences.

In this case, the legislature removed a few words that (they seemed to think) would allow blood draws with a warrant. Such warrants were already legal, so the only effect of this change was to open the door (inadvertently) to warrantless blood draws.

Under the current Missouri and federal case law, the prosecutors feel that such warrantless blood draws will be upheld as legal. I tend to agree. Richardson said he still advises law officers in his county to seek a warrant until prosecutors find a favorable case to present the issue for the courts to decide.

Eventually, some adventurous prosecutor will get that court decision. Then Cole County prosecutors and police will start using warrantless blood draws. It’s probably smart not to take the lead in doing warrantless blood draws. That is because warrantless blood draws are going to present many problems.

Heatlh care professionals are mostly OK with taking blood under authority of a seach warrant. I should note that search warrants do not force them to do it, but typically–if shown a court order–they will take your blood whether you like it or not. That’s the way it is. So how are warrantless blood draws different?

A warrantless blood draw is done without any court order and against the will of the patient. It’s just a cop asking hospital staff to do it. They have no assurance that his judgment is correct (with all due respect for his 18 weeks of law enforcement training)

Another thing that bothers health care providers is that they are accustomed to committing acts which in any other context would be a criminal assault (sticking, cutting, drugging, etc.). But it’s OK because it is done with expressed–or at least implied–consent of the patient. They are trying to help a patient.

The trouble with taking blood for evidence is that nobody suggests they are treating or helping a patient. He is not a patient. He is a suspect and he is not being given medical treatment. He does not consent.

With all these questions, our hospitals will be worrying about lawsuits. They also have to wonder who will pay for an emergency room nurse’s time when they are called to court to testify.

Plan B

Missouri law enforcement will need a “plan B” when Missouri hospitals get fed up and tell them they don’t need the liability and expense of warrantless blood draws.

Plan B in Cole County will look something like this:

The County will have to hire a phlebotomist to draw blood at night and testify on weekdays. It will not be cheap.

Or they have to have police officers trained as medical professionals.

They must also assume that suspects who refuse to consent to a blood draw may not hold still for one. The courts will not admit the lab results of a warrantless blood draw if it harms the suspect.

It will be necessary to install some kind of special chair in the new jail to immobilize suspects who won’t cooperate.

I understand there are a couple nice ones in the gas chamber of the old penitentiary. No one seems to be using them right now

* * *

On second thought, the game is probably not worth the candle. Perhaps the legislature will just go back and fix the mistake.

 

 

Come back with a warrant

Prop B: Do it “for the puppies”

As soon as I heard that Proposition B would rid Missouri of its infamous “puppy mills,” I smelled a rat. Whatever a “puppy mill” is, it must be horrible. Reminiscent of William Blake’s “dark Satanic mills.”

You get the idea that terrible things must happen in “puppy mills.” Like grinding up the unsold puppies for feed. But what do I know? Only that I am automatically skeptical of any proposal that creates another crime on the road to making criminals of us all.

Here are some more reasons why this is one more law we don’t need:

The Truth about Prop B.



Missouri legislature cracks down on DWI offenders.

Governor Nixon is expected to sign new legislation, HB 1694, which sharpens the teeth in Missouri’s DWI laws. The bill has multiple provisions:

  • Creates DWI court combining judicial supervision, drug testing, continuous alcohol monitoring, substance abuse traffic offender program compliance, and treatment of DWI court participants.
  • Minimum jail sentences are now mandated for first offenders whose blood alcohol content is above .15% unless they go through a DWI court. (minimum of 48 hours jail for being over .15% and 5 days jail for over .20%).
  • Minimum punishments for prior offenders are more than doubled unless the offender can attend DWI court. A serious question still remains about the availability of DWI courts because the bill provides no funding.
  • Search warrant procedures are simplified to allow everyday use of warrants to compel blood testing for suspected offenders.
  • The bill adds reporting requirements on all Missouri courts, but makes no provision for funding. The bill also singles out municipal judges for additional training, reporting and monitoring by the circuit court. There seems a resolve to make those local judges toe the line.
  • Two provisions were (deservedly) dropped from the legislation:

1)  One provision would have allowed police to take a blood sample from suspected drunk drivers and later apply for a warrant.

2)  The other dropped provision would have eliminated the section that currently allows a person with a single DWI offense to have the record expunged after ten years had passed.

Jefferson City Criminal attorney

One hopes that despite a complete lack of funding, the severity of the new law can be offset by incorporation of the DWI courts into the existing drug court structures.


Could Red Light cameras be killing us — to make money?

Last month we read the headline:  Missouri Supreme Court Strikes down Red Light cameras.” Depending on the reporter, some media outlets got the story right and some did not.

In fact, red light cameras had little to do with the Supreme Court’s opinion at all. It was the City of Springfield’s enforcement scheme that was condemned by the court. The short version is that Springfield’s red light defendants could not get a real trial, nor a proper appeal. “Nice try, Springfield” the court seemed to say, “but you can’t do that.”  Other cities with red-light cameras–such as Columbia, Missouri–may well have judicial schemes that pass muster.

More interestingly, however, the court recounted the facts of the case. The defendant was Adolph Belt, a 30-year veteran of the Missouri State Highway Patrol. Experienced at traffic control, Belt investigated the traffic light cycle at the intersection where he was photographed running a red light. The yellow light lasted about 3.5 seconds (too short a time for most traffic light situations).

It turns out that the city of Springfield prepared for the installation of its red light camera system by slashing the yellow warning time by one second at 105 intersection signals across the city.  A 2005 Texas Transportation Institute study had shown that a “one-second reduction in yellow time resulted in a 100% increase in the number of violations.” See City Lowers Yellow Light Time Before Installing Cameras. Springfield has been noted as one of “6 Cities That Were Caught Shortening Yellow Light Times For Profit

It doesn’t take a genius to know that if shaving a second off the yellow light doubles the number of “violations” (meaning the number of red lights being run through), then that lost second is CAUSING accidents.

It is beyond argument that when a yellow light is shortened beyond a certain point, it can be impossible to stop safely before running the red light. Not only do cities know this when they shorten their yellow lights, THEY INTEND IT.

To consciously create such a risk is reckless conduct and if a person were killed in this “shortened yellow” scenario, the city and its leaders would be guilty of Involuntary Manslaughter under section 565.024, RSMo.

Perhaps this situation will give a boost to Senator Jim Lembke’s MIssouri Senate Bill 637 which will forbid the use of red light cameras and thereby remove the incentive for this lethal government scam.


Come back with a warrant

Missouri teen texting ban is a failure

Jefferson City Criminal LawyerIn August 2009, reading, sending or writing text messages while driving became illegal for anyone under age 21. Section 304.820, RSMo

It’s easy to understand why messaging is dangerous while driving, but it’s hard to see why it’s more dangerous than sorting your CD collection or putting on lipstick in the rear-view mirror.

My thought at the time was that the only way to get convicted of this offense would be to confess to it. Otherwise, it’s difficult to prove you were texting (as opposed to starting a phone call or looking for an address or surfing the internet).

[Teenager tip: Don’t text and drive, but if you get stopped for texting, do not confess. DO NOT CONFESS.]

A recent St. Louis Post-Dispatch article noted that in the first five months the law was in effect, the Missouri Highway Patrol has issued just 13 tickets for the offense statewide, resulting in eight convictions. That might as well be ZERO.

The fact that the law has proven useless is not likely to stop another 20 states from joining the dozen states that already have the ban in place. Lawmakers–recognizing that the law is unenforceable–note that it raises awareness of the danger. It’s sort of like the Missouri seat belt law: basically unenforceable, but lawmakers get to be seen on the side of the angels.

Lest the bosses at the Capitol building give themselves too much credit for “raising awareness,” they should recognize that most of us wear seat belts because it’s safer, not because it’s illegal.

This may all be moot, however, since Congress is considering making the bans universal. If Missouri’s $200 fine does not stop this behavior, perhaps time in federal prison would scare us all straight. For our own good.


Come back with a warrant

New Missouri DWI law would be harshest ever.

Jefferson City Criminal LawyerThe rage of DWI-related pressure groups is being vented through a proposed Missouri law sponsored by Joplin area state Rep. Brian Stevenson. Stevenson really takes off the gloves with this legislation–HB 1695–and removes any pretense that the “punishment should fit the crime.” HB 1695 creates new crimes such as: first offense driving over a .15% blood alcohol level or refusing to take a breath test.

MIssouri DWI lawInstead of offering treatment options that are given to drug offenders, the new law piles on more restrictions to keep offenders from driving at all.

Even if the offender never drinks and drives again, the license revocations are so lengthy, many drivers must choose between obeying the law and losing their jobs. Eventually they end up in jail or prison–not because they hurt or even endangered others–but because they disobeyed their government to make a living.

It’s not all bad. Some provisions of the law make it more likely that convictions are reported fairly and reliably throughout the state. One is that it forces all municipal judges to take remedial training in Missouri’s DWI laws.

One very sad provision of the new law eliminates what many consider a reasonable and merciful provision of our current law. It’s the one that permits a person who gets a first and ONLY DWI conviction to have their record expunged by the court if they go ten full years without any new alcohol-related contact or conviction.

This is a provision that ought to be extended to many misdemeanor crimes: make one small mistake and if you behave for ten years, we’ll forgive and forget. Instead, we are going the other way.

Perhaps our legislature will see this bill as overreaching and fundamentally unfair. We all know friends or family members who have had an alcohol offense. We know most of them are not repeat offenders and are good neighbors–not the sort that make good political cannon fodder.

If politicians want to grandstand, there are easier targets. For example, sex offenders. The public seems not to mind what we do to them, even after they have paid for their crimes. Certainly there are many more stupid demands they might make of sex offenders, things even more ridiculous than having to hide inside their homes on Halloween.

See New law makes sex offenders hunker down for Halloween


Come back with a warrant


Motorcycle Stunt Driving may soon be a crime in Missouri

Jefferson City Criminal Lawyer

Representative Jeff Roorda, A Democrat from the St. Louis area is back again with a bill to protect us from ourselves. His House Bill 1332 creates the crime of Motorcycle Stunt Driving.

Most new criminal laws are unnecessary and this one is especially so. But considering all the possible crimes we could commit, how cool would it be to have a conviction for Motorcycle Stunt Driving? To quote Will Smith’s character in the movie Independence Day: “I have got to get me one of these!”

To get one, you have to complete one or more of the following “dangerous stunts” while riding a motorcycle on a public road (presumably in front of a police officer):

  1. Standing on the seat, frame, or handlebars;
  2. Performing handstands on the seat, frame, or handlebars;
  3. Operating a motorcycle on one tire;
  4. Removing both hands from the handlebars

It’s kind of like taking your driver’s test, except there is no requirement that you do it very well.  (Keep in mind–however–it could be embarrassing to get a conviction for attempted Motorcycle Stunt Driving). Afterwards, you pay your fine and tell everyone you know that you have a conviction for motorcycle stunt driving.

You could become famous. There are web sites on how to break into the Hollywood Movie Stunt business.

If you’re really ambitious, move to Hollywood. When the movie producer wants to know your motorcycle stunt driving experience, you can whip out a certified copy and tell him, “Experience, hell, I’ve got a conviction.”

Even if you don’t want to get into the movies, a conviction for motorcycle stunt driving can only bolster your image. Everybody knows the ladies go for the bad boys. If you already have tattoos, then this is the next step. If you don’t have one, get your conviction record tattooed on your chest!


Come back with a warrant







Missouri bill would criminalize refusal to take breath test

People often hear that they should refuse to take the breath test if they are arrested for a DWI. Unfortunately–in the case of a simple first offense DWI–that belief will frequently result in worse results than if a person is convicted of the DWI. Refusal to blow will probably result in a one year revocation of that person’s Missouri drivers license.

A bill in the Missouri legislature takes a “refusal” to blow to a new level. SB 780, sponsored by Sen Matt Bartle, makes refusing to submit to chemical testing a separate crime, equivalent to a first-time DWI

In view of the heavy administrative penalty (one year revocation) already on the books, I am not certain how useful this provision will be. It creates a bizarre situation with regard to other statutes that still remain in effect. Section 577.041 requires the arresting officer to allow a DWI suspect twenty minutes in which to contact an attorney about whether to take the breath test.

It seems odd to specifically provide extra time for a suspect to call a lawyer to ask if he should commit a crime. This places the attorney in a situation of having to violate ethical rules if he makes any specific recommendation. I can imagine getting a phone call at 3:00 am:

Me: What can I do for you?

Suspect: I’m at the police station and I want to know if I should take the breath test? I got arrested for DWI.

Me: You are asking me if you should commit another crime?

Suspect: The cop said I could call a lawyer to see if I should blow.

Me: OK, here’s the deal. I can’t advise you to commit a crime. I could advise you to obey the law and take the test, but I can’t do do that either, because it could make your situation worse. However–wink, wink–If you do take the test, X will happen. If you don’t, Y will happen. Good luck.

This bill is hardly necessary, and–as the above shows–creates difficulties within the existing law.  It needs to fail.


Proposed Missouri law would nullify federal gun laws

A proposed Missouri law pokes a (trigger) finger in Congress’ face. The proposed law, known as the Missouri Firearms Freedom Act, HB 1230, was pre-filed on December 1 by Rep. Cynthis Davis of O’Fallon.

The law is a direct challenge to the authority of the US Congress and would specifically invalidate federal firearms laws. The bill, which cites the 9th, 10th & 2nd amendments, as well as the US Commerce clause, declares that the federal government has no authority to regulate the sale, transport and use of personal firearms (rifles, shotguns and handguns) which are manufactured in–and remain in–Missouri.

The logic of the bill is that many federal firearms laws are based on federal interstate commerce powers. Therefore, if a gun does not enter into interstate commerce, Congress ought to have no authority to regulate it.

That is a fair and reasonable interpretation, but one that was abandoned almost 70 years ago when the US Supreme Court–in the case of Wickard v. Filburn–held that federal laws regarding wheat farming applied to any wheat, grown anywhere in the United States, whether it was sold across state lines or not.

This applied even if the farmer ate the wheat in his own kitchen.


As silly as this sounds, the same principle means that a handgun produced [and remaining] in Missouri is deemed to be involved in interstate commerce. Obviously, passage of this proposed legislation will set up a confrontation between the federal government and some Missouri citizen bold enough to violate federal gun laws based on the new state law. Good luck to that guy.

I didn’t see any provision in the bill claiming that Missouri would in any way defend its citizens against an illegal federal prosecution.

Montana and Tennessee have passed similar laws. Here’s a CNN piece:


Many other state legislatures will likely take up a version of the Firearms Freedom Act in the coming year. Even so, the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives has declared such laws have no effect on federal enforcement.

The question is whether the US Supreme Court will hold to the Wickard v. Filburn interpretation of the interstate commerce clause. If the commerce clause were to be re-interpreted in a more common sense manner, it would open the door to a massive rollback of federal control over the people and the states. For more information, go to the website Firearms Freedom Act.