[pct-l] Charging in town

John Papini johnthomaspapini at gmail.com
Thu Feb 11 07:05:40 CST 2016


I love your reference to and explanation of a weak analogy! Gosh, that brings back fond memories of formal debating. 

I did a lot of debating, in fact, about whether to reply at all, given your impassioned writing! We are similar in that regard; I too am passionate about responsibility and courteousness, and I believe that backpackers who do not share our passion can do us all a great disservice by damaging our collective reputation, in ways that Andrea Dinsmore and others have described.

Passion affords tremendous power, but it is incumbent upon all of us to use the power of our passions responsibly, to temper the fires that drive us with prudence and thoughtfulness. This applies as much to the act of backpacking, of course - to balance our mad desire to push onward with caution and forethought - as it does to thinking about backpacking and perhaps more importantly to judging our fellow backpackers. Precisely at those times when passion demonstrates how black and white a situation or issue can be, I think it is both responsible and courteous to slow down and consider how little in life actually is black and white, and how much of it is hopelessly and wonderfully gray. As Mark Twain so eloquently put it, “It aint what you don’t know that gets you into trouble, it’s what you know for sure that just ain’t so.” 

I agree with Andrea and others that the disrespectful nonsense happening on the PCT must stop. This year will be my first thru-hike, and a big consideration for me in choosing the PCT over the AT was the cultural difference between the two. While I very much hope to meet compelling and compassionate people on my hike - people I can call friends long after I cross the border into Canada (or don’t, should self or circumstance prohibit) - I wanted to avoid the “party” atmosphere associated with the AT. It disheartens me to hear that this culture is spreading.

Nevertheless, the kinds of immature activity described in previous emails are oceans apart from the innocent actions of Ido, at least as recounted here. Perhaps you think it is disrespectful for an individual to plug his or her phone into an outlet in a public location - I don’t - but surely you can recognize the difference between plugging your phone into an outlet in a public location and lighting a paper lantern that could potentially burn down a forest? Or from getting drunk and harassing local residents?

Even if you cannot see this difference, your characterization of such actions as “theft” is simply incorrect. I am licensed to practice law in Texas, not California, but reading your impassioned email - and the erroneous accusation of criminal activity contained therein - galvanized me to do a small bit of research into California’s criminal statutes (California Penal Code 494) and confirm that California is not an outlier state in terms of how it defines larceny. In my reasoned reading of their statutes, plugging your phone into an outlet would not constitute a crime under California law. Again, I am licensed to practice law in Texas, NOT in California, so I cannot technically offer you legal advice on this matter, but I do believe that Ido’s actions would not constitute a criminal act under California law. Your characterization of this as “theft,” then, seems to do little to further the important discussion about thru-hiker culture and normative behavior, and in my opinion confuses that discussion.

Larceny in most states, and in California, requires both (1) intent and (2) an action undertaken with the requisite intent. This action can assume any number of forms - from directly taking the property of another, to obtaining that property willingly through fraudulent misrepresentation. “Property” has been specifically defined, and with technological improvements, courts were finding that the scope of the law simply did not cover certain misappropriations; if I take your book without your permission, you no longer have that book. This is larceny. But if I make a copy of your book, you still have your book. This was not larceny under the criminal statute as written. And so copyright laws were born. Electricity and other utilities, courts determined, similarly fell outside of the bounds of the law. So legislators responded with specific statutes intended to prevent theft of this “property” just as they did to protect copyrighted works. California’s statute on utility misappropriation is Penal Code Section 498. This statute can be found here, for those who are interested: http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN&sectionNum=498 <http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN&sectionNum=498>

Now, if you review the legislative history behind this statute, you’ll find that the purpose of this statute was to prevent direct theft from utilities. People were diverting utility services, tampering with meters, etc. The law was never intended to prevent individuals from taking electricity from other individuals (or businesses), and thus was not intended to prevent people from plugging their personal electronic devices into public outlets. Interestingly, though, the police did try to use the law in exactly this way. The Los Angeles police arrested three individuals in 2014 for possession of narcotics, possession of counterfeit money, and - you guessed it - theft of utility services under Penal Code Section 498 for charging their cell phones in the LA Metro station! You can see the article here: http://www.scpr.org/news/2014/12/22/48831/metro-don-t-be-charging-your-cell-phone-in-our-out/ <http://www.scpr.org/news/2014/12/22/48831/metro-don-t-be-charging-your-cell-phone-in-our-out/>

After considerable public outcry, the Mayor stepped in and stated that law enforcement resources should be "directed toward serious crime, not cell phone charging.” The Metro has publicly stated that customers may now use their outlets. The charges against these three individuals were dropped (at least with respect to utility misappropriation; I’m guessing they still got slammed for the narcotics and counterfeit dough). That article is here: http://www.dailynews.com/government-and-politics/20141223/metro-reverses-ban-on-cell-phone-charging-at-stations <http://www.dailynews.com/government-and-politics/20141223/metro-reverses-ban-on-cell-phone-charging-at-stations>

Even more interestingly, this issue has been popping up in a few places over the last two years. From this article, you’ll see reference to the LA Metro incident described above, as well as an incident in London where a man was arrested (and later de-arrested) for charging his cellphone: http://www.citylab.com/navigator/2015/07/where-its-ok-to-charge-your-phone/398849/ <http://www.citylab.com/navigator/2015/07/where-its-ok-to-charge-your-phone/398849/>

Of course, because public opinion caused a change in policy before these cases were adjudicated, there’s no formal caselaw stating that cellphone charging is NOT illegal. In other words, courts still haven’t decided, in California (or elsewhere, near as I can tell), whether Penal Code 498 is meant to or actually covers charging your cellphone. Well, actually, I think the issue is more broadly whether taking electricity from a public outlet would constitute larceny. Again, the law in California was meant to prevent utility customers from stealing from the utility. Not to prevent Starbucks customers from “stealing” electricity from Starbucks. If a clever individual managed to hide an extension cord from a nearby bodega and used it to power his house, would that constitute larceny under Penal Code 498? I don’t know. Courts haven’t faced that problem. 

However, even without any judicial rulings on this particular issue, I can say with near-complete confidence that cellphone charging is NOT a crime. And it has everything to do with the point raised by Jay Bruins regarding the cost of charging a cell phone. This is one of those encouraging instances where the system appears to comport with common sense (rare instances, for the cynics among us). You see, in California (and elsewhere), there is a long established doctrine of the “de minimis” defense. If you’d like, you can read a long paper written by a Berkley professor on the de minimis defense here, though I wouldn’t recommend it: https://www.law.berkeley.edu/files/De_Minimis2_DHusak.pdf <https://www.law.berkeley.edu/files/De_Minimis2_DHusak.pdf>. To summate, the de minimis defense states that even assuming a defendant meets the other criteria for the commission of a crime, courts shall dismiss the prosecution if the defendant’s conduct did not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense, or did so only to an extent too trivial to warrant the condemnation of conviction (emphasis mine). This is established throughout California’s caselaw, but to name a few instances, we have People v. Mijares, where the court found that the defendant was not guilty of possession of an illegal substance (notwithstanding that she did in fact, for a time, possess a bag of heroin), because in her particular case she took the heroin from a friend to throw it away; we also have People v. Brown, a murder case where the defendant was found guilty, but an issue before the court was whether the preparatory acts required for murder in the second degree (as opposed to third degree murder or manslaughter), while they clearly existed, exceeded the de mimimis standard deeply established in California law (in that case, his acts did exceed that standard, but the point here is that the standard exists, unequivocally); then we have In Re V-Z-S-, my favorite, because while it is a case handling immigration matters, the court states, verbatim, that “[n]ot all takings of property, however, will meet this standard [for larceny] because some takings entail a de minimis deprivation of ownership interests.” Bingo! Even if an individual otherwise meets all of the established requirements for larceny, if the deprivation of ownership interests is de minimis, the act is not, under California law, larceny, and therefore it is not a criminal act. It bears repeating, with emphasis: Even if an individual otherwise meets all of the established requirements for larceny, if the deprivation of ownership interests is de minimis, the act is not, under California law, larceny, and therefore it is not a criminal act.

Whew! Sorry for overwhelming you with boring legal details, but the important point here is that (1) it is not at all clear whether “taking” electricity from a public or private place constitutes larceny under California’s utility misappropriation statute, which was designed to protect the utility, and (2) even if courts determine that the utility statute covers such “indirect" takings, the mere charging of a cell phone (as opposed to using an extension cord to power my house) would absolutely without a doubt not pass the de minimis threshold required for criminality if the cost of such charging is indeed a fraction of a cent.

California law is clear with respect to much more than the de minimis defense; Penal Code Section 594-625c very clearly criminalizes destruction of property. To the extent that this McDonald’s employee deliberately damaged Ido’s cellphone (and such actions were not mere accident), that employee could have been found guilty of destruction of property, imprisoned for up to a year, and fined anywhere from $0-$10,000. The statute sets forth maximum fines based on property cost - under $400, the fine maxes out at $1000. Over $400, and the fine maxes out at $10,000. I mention this just in case you’re thinking that destroying a phone could be de minimis. It isn’t. 

I worry, given the length of my response, that perhaps I am guilty of the very thing against which I cautioned at the beginning of my email: allowing my passions to drive me forward without the necessary partnership of temperance. I decided to sleep on it. After a good night’s rest and additional reflection, I believe that this email is the marriage of both passion and of thoughtfulness. Perhaps my legal research was excessive - beyond what was necessary to prove my point - but perhaps not. Perhaps the full weight of the law, as legislated by California elected officials and adjudicated by California courts, is necessary to stand against those who might falsely affix the label of “criminal” to the innocent among us.

Luce, I don’t know you, and I don’t mean to imply that you are some kind of monster that runs around falsely accusing innocent people to assist you in making a point or to give your words unwarranted weight. I think, like me and others on this list, you are passionate about backpacking, and about maintaining a culture of responsibility and courteousness - of respect. And I applaud you for that, as I applaud Andrea Dinsmore and others who have shared their stories. Self-control and established group norms are necessary to maintain positive relationships between hikers and residents, to maintain a culture of which we can all be proud. 

But Luce, charging your phone in a public place isn’t the same as risking wildfires or drunk & disorderly conduct. It’s just not. It’s not inherently dangerous and it’s not inherently disrespectful. Most importantly, though, it’s not criminal. Not in California, not in Texas, and while I haven’t checked, probably not in Oregon or Washington either.

By all means let’s have a discussion about appropriate behavior on the trail. That’s important, even necessary. But try not to falsely throw around accusations of criminality as though you have some authority on the subject, OK? I don’t know Ido or Ido’s friend, but I’ll give them the benefit of the doubt just as I give it to you. Life is gray.

Stay passionate,
John Papini

> On Jan 28, 2016, at 11:19 PM, Luce Cruz <lucecruz13 at gmail.com> wrote:
> On Thu, Jan 28, 2016 at 1:31 PM, Jay Bruins <jbruins at gmail.com> wrote:
>> Just so we’re clear, the cost to charge a modern phone is peanuts:
>> http://blog.opower.com/2014/09/iphone-6-charging-47-cents/
>> $0.47/365days * 4 days between towns = $0.0051 per town*. This is no more
>> “theft” than finding a penny on the ground and taking it with you.
> That is a very weak analogy.
> http://www.logicalfallacies.info/relevance/weak-analogy/
> The difference is so clear it doesn't even deserve reasoning out, but the
> penny that someone could have likely willfully thrown on the ground in
> order to be rid of it is much different than the electricity that must be
> paid for, every single little watt.
> Sure, your own little device might not amount to much, but if a quarter of
> the herd did so, at your purported $0.0051/town, and the number of people
> stealing the electricity was in the number of say 500, you now have a total
> of $2.55. If more than 500 do this, say, double the amount, than it totals
> $5.10. Where is the limit before the person that has to pay for the
> electricity is allowed to become upset over this theft in your mind? When
> does the owner or financially responsible party get to be victimized by
> this? $5? $10? $10.01?
> This is why these matters are not up to you.
> Theft is theft, no matter what it is. That anyone would argue that it is a
> meaningless thing is despicable. When all the trail angels and things that
> were considered "free" without being explicitly free are gone, we will know
> exactly how that came to be. We can blame the same mentality that says that
> catching more than the possession limit while fishing isn't hurting anyone,
> or that taking a roll of TP out of a bathroom doesn't really cost a
> business or trail angel that much. "Restroom is for customers only" means
> precisely that, that paying customers are helping to shoulder the burden of
> water, electricity, cleaning, maintenance, and repairs.
> It might cost us all plenty in the long run. Ask Andrea Dinsmore. That is a
> fine example of what happens when someone has had enough of this selfish
> mentality. And she is not alone. There may be no telling how many may have
> offered kindness in the past and decided that entitlement mentality wasn't
> worth dealing with any longer?
> If you steal, no matter how small the item in value, even if only
> "peanuts", you are a thief. Trying to tell me it's no big deal will say
> volumes about you and will do nothing to change anyone's mind about it.
> This is my final word on the matter for the season unless this becomes a
> glaring problem a few months from now.
> -- 
> Luce Cruz
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