A gem from Christmas past…

“The Constitution says your right to privacy is only protected in situations where one has a reasonable expectation of privacy. It’s a well known fact that Santa is watching us all the time.”
Most Southwest Oklahomans would never tolerate finding a bearded stranger in the middle of the living room late at night rummaging through a sack of valuables. A hasty call to the police would ensue or, in the home of the Make My Day law, a firearm might even surface.
 Just last week, a woman in Comanche County called sheriff’s deputies after she found a woman in her home without permission. The visitor said she dropping off a Christmas present, but the homeowner promptly ordered her out and called law enforcement.
 So how has Santa managed to escape prosecution for so long? Are we so drawn in by the prospect of receiving presents that we don’t even question whether Santa is nothing more than a hardened, or rather a softbellied, criminal? The guy dresses like a gang member; he’s perfected the art of slipping in and out of a home undetected and operates under multiple aliases — “Saint Nick” and “Kris Kringle,” to name a few — and he essentially bribes people into being “nice.” But everybody loves the guy, aside from a few teary toddlers at the mall.
Maybe those teary kids aren’t being naughty; maybe they have an extrasensory perception that Santa is, in fact, a lawbreaker. After a little research and consultation, it appears as though Mr. Claus could be jailed, ticketed, sued or even thrown in federal prison for anything from trespassing to illegal possession of exotic animals for his yearly rounds.

 The way Comanche County Assistant District Attorney Mark Stoneman sees it, the milk and cookies are Santa’s “get out of jail free” card. By putting out the plate of sugary goodness, Stoneman said, residents make it hard for prosecutors to establish “mens rea,” or Claus’ criminal intent.
 “Those cookies would lead Santa to believe he was welcome in the home,” Stoneman said. To arrest him for breaking and entering after he was invited in could be entrapment.

Basically, an intruder must know that he is not authorized to be inside a place for him to be guilty of a crime. So if there are no cookies, is Santa committing a burglary? Burglars have to break and enter into a structure or vehicle with the intent of committing a crime. Most thieves are prosecuted for entering with the intent to commit a larceny, or take goods away from the property, but leaving valuables at the home isn’t a felony. It isn’t even a crime, as long as the gifts aren’t illegal or able to be construed as harassing or violations of public decency.

 So then it would just be breaking and entering, right? Not quite.
“To break and enter, you have to actually open a door or window; a chimney is just a hole in the top of a house,” Stoneman said. The law doesn’t specifically state anything about whether a flue constitutes a door or window.
  Before any potential perpetrators start trying to shimmy down the stack, be r e m i n d e d that countless criminals are r e s c u e d each month across the country after they find themselves stuck in a chimney.
  Oklahoma law does state that any person “under circumstances not amounting to any burglary” who enters any structure with the intent to commit malicious mischief is guilty of a misdemeanor. The statute does not say that decorating a Christmas tree without consent or filling socks with treats and toys constitutes malicious mischief.
  “I suppose if someone didn’t want Santa there or didn’t know he was going to be in the house, they could file trespassing charges,” Stoneman said.

 Santa wouldn’t likely be required to appear in court or post a bond for a trespassing or breaking and entering complaint, but he might want to hire a lawyer. Defense attorney Kenny Rhoads said he would gladly take Santa as a client — for a small retainer fee.
 Rhoads said if the benevolent gift-giver found himself facing charges, he would craft a twofold defense. First, he said, he would ask for an in-person line-up, complete with costumes.
 “There are literally thousands of people who share characteristics with my client, especially at this time of year. How would they know they got the right guy?” Rhoads said. “I’d love to see 1,000 Santas at the Coliseum. Good luck pinpointing which suspect is the real perpetrator. I’ve heard the same ‘ho, ho, ho’ thousands of times and it all sounds the same to me.”

Second, Rhoads said, he would ask for a competency evaluation.
 “We’re talking about a guy who claims he’s capable of motorless flight, can teleport or bend the rules of time, and has a constantly jovial demeanor, which is contrary to most people. I think there’s definitely some sanity concerns,” Rhoads said. “Or ‘Santa’-ty concerns.”
 Nevertheless, Lawton police say they would never arrest the real Santa, and Stoneman said the DA’s office would never prosecute the big guy for fear of winding up on the naughty list. Plus, tying him up with legal proceedings might prevent him from making his deliveries on time. If the “crime” were discovered after Santa was gone from Comanche County, extraditing a suspect from the North Pole might prove to be impossible.
 “Also, I would be ethically obligated to disclose every gift I’d ever received if I had to consider filing charges,” Stoneman said.
 It isn’t just entering millions of homes in the dead of night that should raise eyebrows. Claus better have proper licenses if he wants to bring his reindeer to Lawton homes.
 Animal Welfare Supervisor Rose Wilson said it would be legal to keep and raise deer because they are indigenous wildlife, but Santa must have a state license to do so. The deer would have to be current on all their vaccinations and adhere to the state health department’s regulations regarding livestock.
 Rudolph, however, would be an exotic animal, which are illegal to possess. When was the last time you saw a group of red-nosed reindeer grazing the fields of Southwest Oklahoma?
 Plus, eight reindeer kept as pets would surpass the three-pets-per-household limit for Lawton residents, unless Santa had a special license.
 Speaking of licenses, Lawton Municipal Airport Manager Barbara McNally said the Federal Aviation Agency should have a pilot’s license on file for Santa Claus; otherwise he would be illegally flying his sleigh, which is also subject to inspection. While Santa’s bowl full of jelly and spectacles are part of his charm, Mc-Nally said, if Santa cannot pass a yearly physical exam his license would be suspended.
 Even with the proper licenses, landing a sleigh on the housetop is definitely a violation of FAA regulations. McNally explained that craft flying over populated areas must maintain a minimum altitude of 500 feet. Any lower and a pilot could be fined.
 “If a complaint is filed and the FAA follows up on it, the aircraft would likely be tracked with a tail number. I bet Santa’s sleigh doesn’t have a tail number,” McNally said, so it would be difficult, if not impossible, to hold him accountable for the infraction.
 As far as restricted airspace, McNally said Santa has been in the business of delivering toys for so long he probably is well aware of the areas he can and cannot fly.
 Violations of air-space rules could constitute federal offenses, but McNally said that without a slew of cases of bad pilots on the books, she couldn’t say exactly what punishment Santa might face.
It may not be surprising that Santa has not been arrested, but it’s downright amazing nobody has sued Mr. Claus.
 Lawton Municipal Court Judge Nathan Johnson said manufacturing of toys at the North Pole could violate patent and trademark laws because the products usually have the brand name stamped right on them. Recently news outlets have covered cases brought in international courts by Apple that have resulted in orders for companies to cease the sale and distribution of similar products.
 “If Santa is making smartphones, he better not make them too much like the iPhone,” Johnson said.
 Unless Santa has contracts with every company in the world making him a licensed manufacturer and distributor of their product, a court could easily rule against him, even if the products aren’t being sold. Essentially, the meeting of the minds between children promising Santa they will be good all year and leaving him milk and cookies in exchange for the gifts is the equivalent of Santa receiving something in return for the goods.
 “Well, if that’s the case, what if you were nice all year and Santa doesn’t bring you what you ask for? Would you then have a civil claim against Santa Claus for breach of agreement?” Johnson asked.
 Since Santa’s workshop is where the toys are made, if someone injures himself or herself with a defective or dangerous toy, Johnson said Santa could face a product liability suit as well. But with what court would one file such a claim? Normally, claims are filed with the court that has jurisdiction where the incident occurs, but what court has jurisdiction over the North Pole?
 Johnson said a claim could be filed in the appropriate U.S. federal district if Santa had minimal contacts with the people within that district. If Santa advertises his services in Comanche County or accepts letters from residents here, he most definitely could be sued for faulty products here if they were manufactured elsewhere.
 The list of possible infractions could continue on and on, branching into immigration questions about crossing borders without identification, homeland security issues regarding customs claims or searches of the sleigh, or even constitutional rights to privacy. How can Santa keep files on every boy and girl’s behavior without violating their rights to privacy?
 “The Constitution says your right to privacy is only protected in situations where one has a reasonable expectation of privacy,” Stoneman said. “It’s a wellknown fact that Santa is watching us all the time.”
 Perhaps the biggest question remaining is how has he been able to escape any legal hang-ups for so long? Nobody wants to be the one who stops the flow of presents. Nobody wants to end up on the naughty list. Nobody wants to be the one that turns on “Old Saint Nick.” So does that make us all accessories or conspirators?
According to Stoneman, it may not even be possible to bring Santa into court because his status as a diplomat from the North Pole makes him immune from criminal or civil litigation.
 I, too, have a fear of the naughty list and am not advocating we wage a legal battle on Santa Claus. I think it’d be safe to say the joy and cheer that can be traced back to Santa would make throwing him in jail the real crime.
 So until then, we’ll just keep turning a blind eye to the happiest crime spree in the world, if it means millions of little smiles on Christmas morning.



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