Posted by Dave on January 10, 2005 at 22:32:48:
In Reply to: Does F&G have the right to board us? posted by Captain Tim on January 10, 2005 at 20:05:36:
Great boat, I hear nothing and have experienced nothing but good about you, your crew and your boat. Been on it many times, some under the Charisma name and under your watch. Now if your charter to Cortes Banks the end of the month only gets there with weather permitting, lol. The Tanner Banks trip looks tasty too, never been there.
Anyway, all my usual posting pranks resulting from sheer boredom aside, I brought up DFG search conduct at my police academy during the search and seizure law portion. It stumped the legal instructors when I asked why it seemed that all of the laws and precedents which have interpreted the Constitutions prohibitions against unreasonable searches and seizures seem to get thrown right out the window when it comes to DFG and the Border Patrol.
As an example, I have had Customs down by the border near TJ as well as by Border Patrol near Oceanside/Camp Pendleton tell me that because a citizen has left the U.S., the government has a higher duty to protect its borders. This is a laughable excuse as any Citizen traveling to San Diego then returning to Orange County has in fact never left the Country, so where is the border protection in searching a Citizen who has in fact never crossed the border? Of course, ask any illegal alien from Mexico or Guatemala if the U.S is exercising its duty to protect its borders and you may get a different answer. Seems those damn traveling and vacationing/recreating U.S. Citizens are to be more scrutinized then all those flagrant law breaking illegal aliens.
As to TJ, I asked them what court decisions or laws they claim settle that a citizen has a reduced expectation of privacy and their Constitutionally referenced rights are reduced just because they exercised their right to freely travel.
In our administration of justice police academy portion, it was laws and interpretations that were discussed that confined governmental power to intrude upon your person and affects, yet the DFG and the Border Patrol supervisors were unable to give me such answers.
Now one of the things that I would find interesting is if our territorial waters extend to the 11-12 mile limit, if that is the case, where the hell does the Coast Guard get off boarding any boat and searching United States Citizens in international waters?
I just don't see how the Constitution can be selectively applied by the U.S government based upon where a Citizen has been or where they are.
As to the DFG, in my instance, it personally makes sense to me to allow lobsters to get to a certain length so they can go through a few reproductive cycles before they are eaten, but to allow the taking of females, especially laden with hundreds of thousands of eggs under the swimmerettes makes no sense and I personally find morally reprehensible..
It also makes no sense that in the absence of probable cause to believe a crime has been committed, they can search your belongings. I haven't gotten a good, straight legally sound answer out of DFG supervisors yet on this one either. That is why I refuse to allow them to search my belongings, but the way this is done is to quietly ignore them and not line up with the rest unless they confront me, then I politely and personably refuse a search consent and then play the mind chess game which I have never lost whether it has been with L.E. or a few times with DFG.
Watching the liberties of citizens being slowly eroded over time in the U.S.'s futile jihad against drugs causes me great concern as a libertarian. Rights are not to be exercised only when needed, they need to be exercised always at every chance even when not needed to ensure their survival.
Chances are when a law enforcement type asks for permission to search it is because they have no legal right to. I always recommend citizens always refuse a search consent request and that they always politely disobey any law enforcement instruction to give up any of your rights-for the same reason Rosa Parks sat in the front of the bus and Susan B Anthony as a woman voted when the law prohibited it.
As a vessel captain it is a fine line you must walk though if you decide to exercise your rights and instruct potential boarders that you do not consent to a search. An unprofessional DFG/ Coasty type may view this as contempt of cop, then hope you have some loser type on board with a half used marijuana cigarette as a pretext to embarass you in front of your divers at best or worse seize your vessel which is your livelihood. God, dive boat owners an those of us with business-financial educations as opposed to most divers know that at current dive trip prices, your not making any $ anyway. This threat is how the government takes away your civil rights by threatening to economically extort you by penalizing you in some form if you dare to exercise your rights. This is why there needs to be a major overhaul of government as such conduct by them is jackbooted tyranny. But getting back to economic reality for the unwealthy, perhaps a call to a senior DFG supervisor in Long Beach about the finer points of the law along with your concerns would be enlightening-I have had pleasant non-confrontational intellectual conversations with such supervisors related to finer legal points of DFG laws-like the fact that the DFG enforces not the Fish and Game Code but the California Code of Regulations, the latter of which prohibits the taking of lobster with anything but a hand via a sport fishing license whereas the Fish and Game Code authorizes the taking of lobster with a hoop net with a sport fishing license, and sets forth no further limits or definitions on what constitutes a hoop net. That means divers can take lobster via hoop nets. When I showed that to the DFG District Supervisor he had a heart attack-when he said they cite under the CCR's, I informed him that because the CCR's related to game taking was the result of a commission writing regulations, whereas the FG Code is a Code signed by the "governator", anyone who slept through law school would be able to get a diver-using-a -hoop-net-for-lobster citation dismissed at the appellate level because any law signed by the governor takes precedence over any regulations not signed aka the California Code of Regulations for game. Made for a intellectually stimulating conversation for sure.
Now I know most reader/divers here understandably will think I am off my rocker about the FG Code in this instance, but since Cal law requires all laws to be published on the Internet, here's a copy cut and paste of the Cal Fish and Game Code:
FISH AND GAME CODE
7256. Spiny lobster may not be taken under a sport fishing license except by use of a hoop net or by hand.
Or see it for yourself:
Anyway, those are my thoughts.
Post a Followup