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Fighting It After The
Gateway Drug Process Has Taken Place

An Example of Prosecuting
Government Officials When Death Results:
The Case of People vs Budzyn and Nevers

Recommended Websites for Background Data
Crime Prevention Drug Prevention DWB
Government Crime Medical Statistics Michigan Law
Murder Precedents Cigarette Ads Are Illegal Toxic Chemicals

Outline of Subjects Covered Herein
    1. Introduction and Background
    2. The Specific Incident At Issue
    3. The "Universal Malice" Doctrine
    4. The "Taking Victims As They Come" Doctrine
    5. The "Perception of the Hazard" Concept
    6. Job Safety Law Principles
    7. The Twin Duties of Prevention of Harm
and of Aid If Harm Is Caused
    8. Entrapment Principles
    9. The Decision Belonged to a Jury
10. Conclusion
11. Other Websites Specifically On This Case
12. How to Prevent Future Such Incidents
13. Postscript—Nevers Has Lung Cancer

1. Introduction

This site discusses the death at police hands of an alleged black drug user. Two white police officers, Walter Budzyn and Larry Nevers, were arrested and convicted for killing him. The official lawbook citations for the cases herein discussed are: People v Budzyn, 456 Mich 77; 566 NW2d 229 (1997) and Nevers v Killinger, 990 F Supp 844 (ED Mich, 30 Dec 1997) aff'd 169 F3d 352 (CA 6, 1 March 1999) cert den 527 US; 119 S Ct 2340; 144 L Ed 2d 237 (14 June 1999).

Most analyses of the case jump right into the middle: alleged drug user killed by cops. This site goes in some detail into the background, with medical journal and lawbook citations, far beyond anything the mass media says.

The websites listed above contain basic medical data on cigarettes as the gateway drug delivery agent; racism in law enforcement commonly called "DWB"; cigarettes' illegal toxic chemicals; medical fact-finding principles; the Michigan cigarette control law MCL § 750.27, MSA § 28.216, banning cigarettes; murder precedents; the need for billboard control to prevent racial targeting; the need for enforcement of current anti-cigarette advertising law; the role of the gateway drug in crime, alcoholism, and drugs; and the widespread governmental corruption and racism undermining enforcement and setting the stage for future incidents of the same type.

It is typical that cigarettes are the starting point in the drug abuse lifestyle; they are the delivery agent for nicotine, the gateway (starter) drug for children. "The first step toward addiction may be as innocent as a boy's puff on a cigarette in an alleyway," said the U.S. Supreme Court in Robinson v California, 370 US 660, 670; 82 S Ct 1417; 8 L Ed 2d 758 (1962). The average age of onset is 12.

Next in sequence, alcohol follows, average age 12.6; then marijuana, average age 14. See, e.g., DHEW National Institute on Drug Abuse (NIDA), Research on Smoking Behavior, Research Monograph 17, Publication ADM 78-581, p vi (Dec 1977); DuPont, Teen Drug Use, 102 J Pediatrics 1003-1007 (June 1983); Fleming, et al., Cigarettes' Role in The Initiation And Progression Of Early Substance Use, 14 Addictive Behaviors 261-272 (1989); and DHHS, Preventing Tobacco Use Among Young People: Surgeon General Report (1994).

So police action to prevent addiction starting is imperative. But instead of aggressive prevention action, preventing cigarette sales to youth, what do we see? Page 10 of the said 1994 Surgeon General Report gives the sad answer, "Illegal sales of tobacco products are common" (due to a widespread refusal of enforcement).

"It's a problem that's faced by police departments in every major city in our country, that criminals infilitrate and sign up to join the police force," says Secretary of Defense Donald Rumsfeld, CXLVI Newsweek, p 23 (10 October 2005). See examples, e.g., by Guy Lawson and William Oldham, The Brotherhoods: The True Story of Two Cops Who Murdered for the Mafia (New York: Scribner, 2006); and Louis Eppolito, Mafia Cop (New York: Simon & Schuster, 1992). Thus "there were a lot of dirty cops. Half of them seemed to have a price," Chapter 7, "The Amazing Life and Times of 'Gaspipe' Gasso," § 2, "The 19th Hole," p. 152. "Psychology books are packed with studies of the personality traits of men like [this]. They often possess a superficial charm and above-average intelligence. They rise to the top of large organizations, even nations. They usually aren't obviously irrational, at least at the beginning. They are shameless liars, as long as the lie serves their purpose. Among their characteristics are glibness, lack of empathy, an inability to accept responsibility or recognize the impact of their behavior on others--the things that make a narcissist [and] a short attention span," Brotherhoods, Chapter 7, "The Amazing Life and Times of 'Gaspipe' Gasso," § 1, "The Prospect," p. 146. Such criminals infilitrated into and hired by police departments of course have no interest in crime prevention. Instead, they have their own criminal purposes in mind. For example, "prisoners took unmerciful beatings in precinct houses all over the city. . . . If a perp had a couple of broken ribs there would be no problem. It was common to see prisoners with their heads wrapped in gauze to staunch the bleeding from blows to the head," Brotherhoods, Chapter 6, "Godfathers of the NYPD, § 5, "Internal Affairs," p. 129.

The Department of Health, Education and Welfare (DHEW), Smoking and Health: Report of the Advisory Committee to the Surgeon General of the Public Health Service, PHS Pub 1103, Table 4, p 60 (1964), lists examples of cigarettes' toxic emissions vs their "speed limits" ("Threshold Limit Values," TLV, the official term) as set by the toxic chemicals regulation 29 CFR § 1910.1000:

"Speed Limit"/TLV
acetaldehyde 3,200 ppm 200.0 ppm
acrolein 150 ppm    0.5 ppm
ammonia 300 ppm 150.0 ppm
carbon monoxide 42,000 ppm 100.0 ppm
formaldehyde 30 ppm  5.0 ppm
hydrogen cyanide 1,600 ppm     10.0 ppm
hydrogen sulfide 40 ppm     20.0 ppm
methyl chloride 1,200 ppm 100.0 ppm
nitrogen dioxide 250 ppm       5.0 ppm

These "speed limits" (TLV's) are never enforced—in brazen disregard of the 29 CFR § 1910.1000 "speed limits" and in defiance of cigarette control law MCL § 750.27, MSA § 28.216. Racists spread the Confederate "rights" myth (evils are "rights"), and specifically, the myth of ingesting poison (smoking) as a "right," and deem tobacco a "white" drug and enforcing that law (on arresting illegal cigarette pushers) as a burden on the judicial system. However, racists deem subsequent drugs in the drug sequence (cocaine, etc.) "black" drugs. Racists feel that enforcing those laws (jailing blacks en masse, with disproportionate penalties, and vast prison-building programs) is NOT a burden on the judicial system.

In the runup to Michigan's smoke-free law, in the article by Mitch Hotts, "Bars bid adieu to cigarettes, cigars, with one last smoking bash," Macomb Daily (28 April 2010), pp 1 and 6, retired police officer Carl Timm is quoted on p 6. "A bar is a bar is a bar is a bar." "I feel the individual bar owners should have control over their places of business. To many people, a cigarette or cigar goes hand in hand with a beer." His attitude was summarized as "feel the state is infringing on smokers' rights." One would not foresee, with such a negative attitude toward constitutional rights and the rule of law, that any anti-tobacco enforcement was ever taken! with respect to the law, MCL §750.27, MSA § 28.216!

"Over 37 million people (one of every six Americans alive today) will die from cigarette smoking years before they otherwise would." (Source: the U.S. Department of Health, Education and Welfare, National Institute on Drug Abuse (NIDA), book entitled Research on Smoking Behavior, Research Monograph 17, Publication ADM 78-581, p v (December 1977).) A few years earlier, the Royal College of Physicians of London, in its book Smoking and Health Now (London: Pitman Medical and Scientific Publishing Co, 1971), p 9, had already declared the smoking-caused death toll to be a "holocaust" due to the then "annual death toll of some 27,500." If 27,500 deaths is a "holocaust," and it is, 37 million is (in contrast to the Nazi 6 million holocaust), a six fold+ holocaust. That is above the World War II "crimes against humanity" level for which prosecutions occurred.

This 37 million casualty level is above what is ever foreseeable from any other "ultrahazardous activity" as that term is discussed by the U.S. Supreme Court in the case of Laird v Nelms, 406 US 797; 92 S Ct 1899; 32 L Ed 2d 499 (1972). There, sonic booms and dynamite blasting are discussed in context of "ultrahazardous activity." Each produces a spreading effect. Cigarettes do that via fires and via their toxic chemicals, superheated, moving at high speed. In contrast to sonic booms and dynamite blasting, which kill essentially nobody, cigarettes kill 37,000,000 in the U.S. alone, and constitute a "holocaust." The subject at issue concerning which we are noting the officers' long term failure to enforce the law, is the most "ultrahazardous activity" on earth. Yet re enforcing this law: Nothing. But re lesser death-causing matters, all the way to beating someone to death!

The African-American Museum (Detroit) has exhibits on slavery. For example, there are life-size statues of children, slaves. During slavery, slavers targeted children to be kidnaped, captured, and enslaved. Are children safe now from slavery? Let's think about it. Now there is chemical slavery. Children are still being targeted, especially minority children. See E. A. Klonoff, et al, Sales of Cigarettes to Minors, 87 Am J Pub Health 823-6 (May 1997), and the Surgeon General Report, Tobacco Use Among U.S. Racial/Ethnic Minority Groups (1998). These reports show that tobacco pushers (can we call them the neo-Confederate Army?) carefully target minority youth disporportionately, to hook them into initiating the drug cycle. There are more cigarette and alcohol billboards in minority areas, more liquor stores in higher percentages. No, children (and ADULTS) are not safe yet. The neo-Confederates can't do regular slavery, so they do chemical slavery. And they disproportionately target the same targets as before the Civil War. And have a record of using coumarin (for rat poison) on the targets.

One other introductory fact you should know is that one of the longest established facts in law enforcement, is the role of cigarettes in crime. This knowledge did not begin with the recent study showing that "Maternal prenatal smoking predicts persistent criminal outcome in male offspring." See Brennan, et al., 56 Arch Gen Psychiatry 215-219 (March 1999). The cigarettes-crime link was a matter of record long before that study came out.

"Nationwide, the [ratio] of smokers [to non-smokers] in prisons is 90 percent." McKinney v Anderson, 924 F2d 1500, 1507 n 21 (CA 9, 1991), affirmed and remanded, 509 US 25 (1993).

"Nowhere is the practice of smoking more imbedded than in the nation's prisons and jails, where the proportion of smokers to non-smokers is many times higher than that of society in general." Doughty v Board, 731 F Supp 423, 424 (D Col, 1989).

"It is an undisputable fact, and one that should give us considerable concern, that . . . nearly all criminals are cigarette smokers." (1931)

"What has been called a 'crime wave' in the United States the past few years has been misnamed. It is not a wave. It is a harvest-the natural result of the sowing . . . 'Sow tobacco, and reap crime.' The Criminal, published for detectives and police officers, says 93 per cent. of all criminals use tobacco before committing the crimes leading to their arrests. . . . Hon. George Torrance says: 'Of 4,117 boys received into the Illinois State Reformatory, since its organization on Jan. 8, 1893, 95 per cent. had the tobacco habit, and nearly all were cigarette smokers.'"(1925)

"[J]udges of juvenile courts everywhere recognize the close relationship that exists between cigarettes and crime. . . . Not only does the use of cigarettes produce a criminal tendency . . . it also produces what might be termed [psychopathy] . . . a condition in which lying, thieving, and murder become as natural as eating and drinking . . . ." (1924)

"Cigarettes are not the effect of crime, but they are the cause of it. . . . Dr. Gentry, of Chicago, says . . . 'The only way to stop the increase of . . . criminals . . . is to stop the use of tobacco, and also the raising and manufacture of it. . . . The use of tobacco is a great crime.'" (1916).

"Investigations in prisons, and houses of correction, and State reform schools show that a vast majority of their inmates used Tobacco before they committed crime. . . . 'The more Tobacco, . . . the more . . . crime.'" (1878)

"The Chaplain of the State Prison, at Auburn, for the year 1854 . . . reports. . . that five-sixths, or five hundred, out of six hundred who were convicted for crime . . . use . . . tobacco. Outside of this statistical statement, my own investigations . . . corroborate the truth of this record." (1879)

Racists in law enforcement use this data (and of course, widespread racism itself) to manipulate and corrupt police priorities, a process commonly called "DWB." For example, in the 1960's-1970's, there was a black group called the Black Panther Party. They alleged that police disproportionately issued their members traffic tickets. The police denied it. Prof. Frances K. Heussenstamm did an experiment. Twenty university students with excellent driving records, having cars with no defects (prevent an excuse for a stop), were assigned to make one change only: attach "Black Panther Party" stickers to the bumpers! The reaction: 33 traffic tickets in 17 days!! See Frances K. Heussenstamm, "Bumper Stickers and Cops," 8 Transaction: Social Science and Modern Society (#4) 32-33 (Feb 1971).

In court, race has a role in penalties judges impose. See Derrick A. Bell, Jr., "Racism in American Courts," 61 Calif Law Rev (#1) 165-203 (Jan 1973), and Donald Jackson, "Justice for None," 2 New Times 48-57 (11 Jan 1974). In an experiment by the latter, 36 judges were given a hypothetical misdemeanor case to decide the penalty. The penalty was three to ten days jail if the accused was identified as white; five to thirty days if deemed black.

Wherefore it is clear that race is a key determinant in (a) being arrested in the first place and (b) the penalty imposed. These facts corroborate the mass refusal to prosecute illegal gateway drug pushers, tobacco manufacturers and sellers (white crime), and to prosecute only at the post-gateway drug stage (black crime).

We all know "a stitch in time saves nine." Here, there is no enforcement at that stage (the 1909 cigarette gateway-drug ban stage), only at the latter aspects of the drug sequence, only at the post-gateway drug stages. Repeat, ONLY. A one-time failure to do the "stitch in time" might be an honest error. Ninety-one years (1909-2000) of the same "error," do you begin to see a pattern?!

2. The Specific Incident At Issue

With this background in mind, we can better analyze the Budzyn-Nevers-Green incident. Detroit Police Officers Walter Budzyn and Larry Nevers were found guilty of involvement in the beating death of Mr. Green. As police officers, Budzyn and Nevers (in their entire career) never enforced MCL § 750.27, MSA § 28.216, the cigarette control law. This non-enforcement occurred even though each officer had
"by reason of his position . . . responsibility and authority either to prevent in the first instance, or promptly to correct, the violation" (of whatever type occurs) so "if he [the officer] does not will the violation, [he] usually is in a position to prevent it," United States v Park, 421 US 658; 95 S Ct 1903; 44 L Ed 2d 489 (1975).

When an official refuses to enforce the law, he can be removed from office, Foster v State of Kansas ex rel. Johnston, 112 US 205; 5 S Ct 97; 28 L Ed 696, 697 (10 Nov 1884) (case on removing a prosecutor from office). When a police officer disregards the law blatantly, a criminal conviction can indeed follow, e.g., United States v Luteran, 93 F2d 395 (CA 8, 1937) (conviction of police officer as accessory to crime, due to his not enforcing the law), and in a cigarette case, United States v Sheriff Goins, 593 F2d 88 (CA 8, 1979) (a bribed sheriff case).

The cases of Application of Yamashita, 327 US 1; 66 S Ct 340-379; 90 L Ed 499 (1946), and Application of Honmo, 327 US 759; 66 S Ct 515-517; 90 L Ed 992 (1946), establish that 'negligence' in a government official, in failing to stop third parties from killing, can itself be deemed a crime, in these cases, warranting hanging.

As a "natural and probable consequence" of the decades of non-enforcement of the cigarette control law, of ignoring "the only way" to prevent crime, many people including Green, the specific victim herein, got hooked by the gateway drug—by cigarettes—hooked into the drug lifestyle, eventually becoming a cocaine addict. Nobody including Officers Walter Budzyn and Larry Nevers arrested the white cigarette pushers who started the drug addiction process in so many people including Mr. Green. Instead, those two officers attempt to arrest Green!! In the process, he is beaten to death. The two officers are arrested, convicted, and jailed. This is an analysis of that situation.

First, we start with the fact that in law, it is not
"unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line." Boyce Motor Lines, Inc v United States, 342 US 337, 340; 72 S Ct 329, 331; 96 L Ed 367 (1952).

As above stated, racists deem tobacco a "white" drug, and enforcing the law on arresting cigarette pushers as a burden on the judicial system. However, subsequent drugs in the drug sequence (cocaine, etc.) are deemed "black" drugs. So racists feel that enforcing those laws (jailing blacks en masse, with disproportionate penalties, and vast prison-building programs) is not a burden on the judicial system. Example: "More than 90% of the persons sentenced in 1994 for crack cocaine trafficking were black," said the Supreme Court in United States v Armstrong, 517 US 456; 116 S Ct 1480; 134 L Ed 2d 687, 701 (1996). That is ok with them. But, to racists, it is not ok to enforce the one law that constitutes "the only way" to prevent that crime.

Such non-enforcement policy is only one aspect of racist aspects in the criminal justice system. See, e.g.,
A. Leon Higginbotham, Jr., and Greer C. Bosworth, "'Rather Than the Free': Free Blacks In Colonial and Antebellum Virginia," 26 Harvard Civ Rights-Civ Liberties Law Rev 17-66 (1991);

A. Leon Higginbotham, Jr., et al., "The Law Only As An Enemy," 70 No Carolina Law Rev 969-1023 (1992);

Paul Finkelman, "The Crime of Color," 67 Tulane Law Rev 2063-2112 (1993); and

Andrew L. Shapiro, "Challenging Criminal Disenfranchisement Under the Voting Rights Act: A New Strategy,"103 Yale Law Journal 537-566 (Nov 1993).

For officers such as Budzyn and Nevers to fall into that pattern, and never enforce the cigarette control law, "goes perilously close to an area of proscribed conduct." The day might come that they "may cross the line" and attack a victim produced as a "natural and probable consequence" of the decades of non-enforcement of the cigarette control law, in essence, a cocaine prevention act, then engage in the victim-blaming syndrome. And, said jurors in finding them guilty, that day DID COME.

A Michigan law, MCL § 750.478, MSA § 28.476, makes it unlawful for the police to NOT enforce the laws. Another law MCL § 767.39, MSA § 28.979, treats "accessories" as "principals." "In Michigan, violation of a statute is negligence per se," Thaut v Finley, 50 Mich App 611; 213 NW2d 820, 821 (1973).

Gov. John Engler says that over 15,000 Michiganians are killed by cigarettes each year. Can we say that Nevers aided and abetted those deaths? Can we observe that he never enforced the cigarette control law during his entire 31 year career. Let's say 450,000 people died in the 31 years while Nevers was looking the other way!

Remember, MCL § 750.478, MSA § 28.476 makes it illegal for police officers to not enforce the law. Let's say Nevers would get a mere 90 days in jail for each day he was on duty and ignored violations of the cigarette law. Nevers likely was on duty about 200 days per year. (This is assuming 20 work days a month, a 10 month year to account for vacation and other time off, erring in his favor perhaps). 31 years X 200 days/offenses = 6200 offenses. 6200 offenses X 90 days per each = about 1,550 years in prison.

Remember the 450,000 deaths? 365 days per year X 1,550 years = 565,750 days. A 1,550 year sentence would work out to about 1¼ day per death. Not bad. Hopefully this data helps put the situation in better perspective.

3. The "Universal Malice" Doctrine

The legal doctrine of "universal malice" concerns causing harm "without knowing or caring who may be the victim." Mitchell v State, 60 Ala 26, 30 (1877), cited in Black's Law Dictionary, 4th ed., (St. Paul, West Pub Co, 1968), p 1110. When others commit a "universal malice" act, the police enforce this doctrine, so cannot be exempt from it themselves, when they have a pattern of having refused for ninety-one years, to have enforced the cocaine prevention act, the cigarette control law, MCL § 750.27, MSA § 28.216.

Beating someone (with or without weapons) can come within the "universal malice" definition. Blows can harm anyone coming within their ambit. A boxer's fists foreseeably can be a lethal weapon. The blows in the Green case were clearly lethal (Green died).

There is a known susceptibility of cocaine addicts to sudden death in situations of struggle and head injury. See Mirchandani HG, Rotke LB, Sekula-Perlman A, and Hood IC, "Cocaine-Induced Agitated Delirium, Forceful Struggle, and Minor Head Injury," 15 Am J Forensic Med and Pathol (#2) 95-99 (1994). In view of the known susceptibility of cocaine addicts to sudden death, due to the tobacco harm they are suffering—in turn caused by the police refusal for 91 years to enforce the cigarette control law, the cocaine prevention act—beating such a person is a clear case of "universal malice." A "universal malice," e.g., an intent to use blows against a victim of police refusal to have enforced the protective law, is
"'regardless of human life, although without any preconceived purpose to deprive any particular person of life." State v Massey, 20 Ala App 56, 58; 100 So 625, 627 (1924).

Beating a cocaine addict, despite the known susceptibility of cocaine addicts to sudden death, corroborates guilt.

Another "universal malice" case distinguishes between degrees of murder involved:
"If an act be committed with a premeditated design to effect death, it is murder in the first degree; but if it is merely imminently dangerous to others, evincing a depraved mind, regardless of human life and without premeditated design, it is murder in the second degree." Montgomery v State, 178 Wis 461; 190 NW 105, 107 (1922).

In view of the known susceptibility of cocaine addicts to sudden death, an effect the cigarette ban law is designed to prevent (and which law the enforcers have a 90 year record of refusing to enforce), the word 'premeditated' applies when the accused officers beat someone they admit they deemed an addict, i.e., someone they knew was a victim of life-long refusal to have enforced the protective anti-cigarette law. In this type of "universal malice," now nine decades of refusal to enforce the the cigarette control law constituting "the only way" to prevent such incidents, harm is foreseeable, so malice is presumed.
"Precisely what happened is what might have been expected as the result . . . and is the "natural and probable consequence . . . Malice is presumed under such conditions." Nestlerode v United States, 74 US App DC 276, 279; 122 F2d 56, 59 (1941).

4. The "Taking Victims As They Come" Doctrine

Whoever sets a process in motion takes the circumstances as he finds them. This includes "taking the victims as they come." It is not lawful to blame a victim for dying!! Courts refuse to let defendants blame the victim. That has been the law for a century. When a defendant tries to blame the victim, the courts say "No.":
"An instruction asked by defendant was to the effect that if, on the account of the diseased condition of Solberg [the dead victim like Green], a blow of less force caused his death than would have been required to take the life of a healthy man, the defendant cannot be held guilty unless he knew of the true condition of the health of the deceased. The instruction was properly refused, and the jury were informed, in substance, that the condition of Solberg's [Green's] health would not excuse defendant. Surely it cannot be claimed that a homicide may be excused on the ground that the man-slayer was ignorant of the fact that his victim's feeble condition [that he by his long refusal to enforce the preventive law, had helped cause] was not such as to enable him to resist the violence" State v Castello, 62 Iowa 408; 17 NW 605, 606-607 (1883).

Green's increased susceptibility to dying is no defense for the accused Budzyn and Nevers. As a matter of law,
"If the exposure [beating] accelerated the death, it 'caused' the death." State v Smith, 73 Iowa 35; 34 NW 597, 601 (1887).

"If it appear from the evidence that the death of deceased was accelerated by the violence of the defendant, his guilt is not extenuated, because death might have come from natural causes as a result of disease with which the deceased was afflicted at the time." Barron v State, 29 Ala App 137; 193 So 190, 191 (1939).

"Death in this case was not casually caused by misadventure and thus, in the sense that the defendant's conduct was capable of causing death in and of itself, that conduct was inherently dangerous to life. . . . The requirement that the danger posed be apparent does not require that death be certain or even probably, in the sense that it is more likely than not. . . ."

Why? Because an accused is guilty even when the "probability . . . is greater than in the general sense." Turner v State, 76 Wis 2d 1; 250 NW2d 706, 712-713 (1977).
"That one may be guilty of homicide by a blow of not itself mortal, but which accelerates death, is proposition supported by the old case of State v Morea, 2 Ala 275, and many other authorities. Tidwell v State, 70 Ala 33, 45; Bowles v State, 58 Ala 335, 339, and cases there cited; and, if there be cases of death accelerated by a blow, in which the party delivering the blow is not responsible for the result, this is not one of them." Winter v State, 123 Ala 1; 26 So 949, 952 (1899).

The Budzyn-Nevers incident involving Green, clearly meets these criteria. Decades of non-enforcement of the law constituting "the only way" to prevent incidents of the type at issue, increases the probability that such incidents will occur. A beating is "capable of producing death in and of itself." The blows did not produce death by "misadventure," a key term from Turner, 76 Wis 2d 1; 250 NW2d 712, supra. Assuming arguendo that tobacco-induced cocaine addiction made Green's death "probability . . . greater than in the general sense," that fact is not a defense, but rather, a corroboration of guilt. The doctrine of taking the victim as he comes, does not allow blaming the victim.

In sustaining a conviction for the death of a victim taken as he comes (a person more likely to die from an effect that might not harm another person), it need only be shown that
"The danger of death . . . is not completely outside the realm of common knowledge . . . Although the death may have been an occurrence unexpected by the [specific ] defendant, that [ignorance defense] fact alone cannot diminish the danger in which the defendant by his conduct chose to place . . . life. On the basis of all the evidence it was reasonable for the jury to be convinced beyond a reasonable doubt that the [police] defendant's conduct was imminently dangerous to another."

"An important consideration here is . . . relative physical characteristics of the victim and assailant [are] factors which may be considered in determining whether conduct is imminently dangerous. Wangerin v State . . . 73 Wis 2d [427] at 435; 243 NW2d [448] at 452; Kasieta v State, 62 Wis 2d 564, 570-571; 215 NW2d 412, 415-416 (1974). It is not unreasonable to infer that the physical trauma . . . will be greater . . . more frightening . . . the probability . . . greater than in the general case." Turner v State, 76 Wis 2d 1; 250 NW2d 713, supra.

That analysis was done in the case of a rape victim, who thereupon died. The accused was thus also charged with murder. His argument, that he had not intended death, was thus rejected. Statistically, a number of rape victims (somewhat under 1%) die as a result of the rape, thus, on a bell-shaped curve, death is statistically foreseeable. (See our website on lawbook legal definitions.) Therefore, said the court, a conviction for murder is valid even though "death would occur . . . in less than one percent of the cases." Turner, 76 Wis 2d 1; 250 NW2d, 712, supra. (Tobacco kills at a far higher rate. "Cigarette Makers Get Away With Murder," says Elizabeth M. Whelan, Sc.D., M.P.H., The Detroit News, p 4B [14 March 1993].)

Knowledge of the cigarette-crime link and of dealing with it as "the only way" of prevention of crime such as the cocaine addiction situation at bar, and knowledge of the hazard to cocaine addicts from blows is more widespread than merely "not completely outside the realm of common knowledge." Much data on smoking effects, the population base from which addicts are typically drawn; and much data on addicts' susceptibility also exists. So assuming arguendo that Green had a "greater probability" of death corroborates (not lessens) guilt.

A 1910 case brings the legal doctrine of "taking victim as they come" so far as to protect bystanders. In that case, the violence / endangering activity was not even aimed at the person who died. The person who died was somebody else, a woman observer some distance away! She was untouched by the violence, she simply SAW it! She died as a result of seeing the harm to others, violence against others. The perpetrator was arrested anyway, and prosecuted for HER death. The court said in denying the appeal:
"If his [the perpetrator's activity] violence so excited the terror of the deceased that she died from the fright, and she would not have died except for the assault, then the prisoner's act was in law the cause of her death." Ex parte Heigho, 18 Idaho 566; 110 P 1029, 1031-1032 (1910).

Even if "Big Tobacco" or the officers' conduct, merely "scares people to death," e.g., from the horror of the mass numbers of killings far above the holocaust level, the perpetrators are guilty! The doctrine of "taking the victim as he comes" covers:
"manslaughter where death was caused by fright, fear, or nervous shock, and where the prisoner made no assault or demonstration against the deceased, and neither offered nor threatened any physical force or violence toward the person of the deceased." Heigho, supra.

Why is that so? Answer:
"The law clearly covers and includes any and all means and mediums by or through which a death is caused by one engaged in an unlawful act." Heigho, supra.

This doctrine means, in the Budzyn-Nevers situation, guilt even if others, e.g., EMS technicians merely SEEING the violence, had "died from the fright" of seeing the police blows to Green. And the same concept would apply to tobacco pushers.

With respect to victims taken as they come, "the law does not apportion the wrong." A
"defendant cannot escape responsibility . . . under the doctrine of apportionment of wrongs, which the law does not do; the law does not apportion the wrong." Barron, 20 Ala App 137; 193 So s191, supra.

Whether the wrong (the death)
"was caused . . . or hastened . . . or accelerated . . . is of no moment in this inquiry."

Even "superinduced" wrong is not excused; "the law does not apportion the wrong." Barron, 20 Ala App 137; 193 So 191, supra.

Tobacco smoke and beatings are known to cause the following typical effects on victims, including those taken as they come:
"Heart attack . . . failure of circulation . . . asphyxiation, the condition where the body tissues have an insufficient amount of oxygen and excess carbon dioxide." Turner, 76 Wis 2d 1; 250 NW 2d, 172, supra.

Such words aptly describe the foreseeable consequences here.

5. The "Perception of the Hazard" Concept

Even one wrongful incident is one too many, in law. "If no one else" but one person is harmed, "that is so much of loss fortunately saved to respondent," De Marco v United States, 204 F Supp 290, 292 (ED NY, 1962). The court was rejecting the claim that guilt should be deemed less, as only one person was killed! No, it's not less guilt, just fewer victims re which to penalize the accused!!

Decades of non-enforcement of the law constituting "the only way" to prevent incidents of this type, has a "natural and probable consequence" of producing such incidents. Additionally, tobacco smoke and beatings by weapons have a natural, probable, and foreseeable consequence of death. The hazard is so well-established that, as a matter of law, there can be no "failure to perceive it," as one perpetrator alleged. As people are required to know what they doing(!), "the standard of care," an ignorance claim is itself a violation! Any alleged "failure to perceive" a hazard (an ignorance defense) itself "constitutes a gross deviation from the standard of care . . . " Dillon v State, 574 SW2d 92, 94 (Tex Cr App, 1978).

6. Job Safety Law Pricniples

The police action in which Green was killed, was an on-the-job incident. Therefore job safety law (29 USC § 651 - § 678, the Occupational Safety and Health Act) principles give insight. Law enforcement officers are workers. Workers are required to act in a safe manner. Workplaces are to be "free of a hazard." The word "free" is an adjective describing what workplaces must be.

What does the word "free" mean in this context? The safety duty "adjective is unqualified and absolute," and a hazard "is known taking into account the standard of knowledge in the industry" (not one's personal knowledge or lack thereof).

The safety duty "adjective" ("'free' of a hazard') "is unqualified and absolute: A workplace cannot be just "reasonably free' of a hazard." National Realty & Construction Co, Inc v Occupational Safety and Health Review Commission (OSHRC), 160 US App DC 133, 141; 489 F2d 1257, 1265 (1973). Blows, combined with the known harms done to smokers, plus the known susceptibility of cocaine addicts to sudden death, are factors in the hazard. These facts are known taking into account the standard of knowledge.

The safety law places "the 'benefit' of worker health above all other considerations." American Textile Manufacturers Institute v Secretary of Labor Donovan, 452 US 490, 509; 101 S Ct 2478, 2490; 69 L Ed 2d 185, 202 (1981). Disregard of safety and
"violation of the regulations [here, the principles herein] is evidence of negligence to be considered with the other facts and circumstances," Dunn v Brimer, 537 SW2d 164, 165 (Ark, 1976).

"In Michigan, violation of a statute is negligence per se." Thaut v Finley, 50 Mich App 611; 213 NW2d 820, 821 (1973).

The "unqualified and absolute" safety adjective requires foresight and vigilance for compliance:
"The requirements of foresight and vigilance imposed on responsible corporate agents are beyond question demanding, and perhaps onerous, but they are no more stringent than the public has a right to expect of those who voluntarily assume positions of authority," United States v Park, 421 US 658, 672; 95 S Ct 1903; 44 L Ed 2d 489 (1975).

This was in answer to a convicted business officials who argued in essence all the way to the Supreme Court that the legal duty set for being safe, is too high!

Tobacco, or here, blows with weapons, plus the known susceptibility of addicts to sudden death, were involved:
"'The accused [official or officer], if he does not will then violation, usually is in a position to prevent it . . . '" Park, 421 US 658; 95 S Ct 1903; 44 L Ed 2d 489, supra.

That is certainly the case here, as each
"defendant had, by reason of his [position . . . responsibility and authority either to prevent in the first instance, or promptly to correct, the violation complained of, and . . . failed to do so. [Conviction upheld]." Park, 421 US 658; 95 S Ct 1903; 44 L Ed 2d 489, supra.

7. The Twin Duties of "Prevention of Harm"
and of "Aid If Harm Is Caused"

The known susceptibility of smokers, nonsmokers including babies and fetuses subjected to toxic chemicals, and cocaine addicts to sudden death requires law enforcement personnel, to not just NOT do as here was done (beat the victim), it requires them to act to prevent the law violations that lead to the harm. The twin duties of (a) prevention and of (b) aid, are applicable in death situations, e.g., as shown in a 1913 conviction based on failure to meet the duty:
"The defendant was charged with the duty to see to it that . . . life was not endangered; and it is apparent he could have performed that duty . . . " [And] "To constitute murder, there must be means to relieve and wilfulness in withholding relief." Stehr v State, 92 Neb 755; 138 NW 676, 678 (1913).

All company, corporate, and police officials have this duty. Officers Budzyn and Nevers had this duty. They were supposed to have, career-long, enforced the drug prevention act, the cigarette control law, MCL § 750.27, MSA § 28.216, to prevent people, including but not limited to Green from even beginning the drug lifestyle, much less, end up a cocaine addict. They never did it. They could have. Even after the incident with Green began, and the beating was in process, they had the means to relieve the harm. They did not. Having failed to do their duty, they could at least have let the EMS personnel at the scene who testified that they were seeing a crime in process, do their relieving job. But there was evidence that the accused officers did not even do that in a timely manner.

Even in non-life-threatening situations, i.e., simply as a routine duty,
"A tortfeasor has a duty to assist his victim. The initial injury creates a duty of aid and the breach of the duty is an independent tort. See Restatement (Second) of Torts, § 322, Comment c (1965)." Taylor v Meirick, 712 F2d 1112, 1117 (CA 7, 1983).

Breach of the duty to enforce the law constituting "the only way" to prevent people being turned into drug addicts, and thus foreseeably leading to incidents of the type at bar, clearly "creates a duty of aid" to such persons produced as "natural and probable consequence" of the decades of non-enforcement.

Tobacco pushers' universal malice leads nonsmoker children, non-addicts, into the starter drug, then down the road, to subsequent addictions, by hooking them on tobacco, a known mind-altering drug. In effect, such drug is a mind poison, causing abulia. See the criminal prosecution for doing that to a person—providing a person a mind-altering drug, People v Carmichael, 5 Mich 10; 71 Am Dec 769 (1858). As a result of ingesting such a drug, the person may come to harm, even if NOT from the drug, so providing it is a crime.

People v Carmichael, 5 Mich 10, supra, gives further analysis of such poisons/toxic chemicals. They:
[1] take away the power of resistance [by producing and unsound mental condition . . . [2] make [the user] an easy prey to [the pusher and other harm] [3] work upon [the ] physical system [so] as to excite . . . passions beyond the control of reason, and, [4] in effect . . . produce, if not insanity, the most deplorable effect of insanity, which is the dethronement of reason from its governing power." People v Carmichael, 5 Mich 20-21, supra.

Tobacco pushers will foreseeably come to a time when they will be charged with poisoning and murder. Here, Green's tobacco pushers had been poisoning him, dethroning his reason from its governing power, taking away his power of resistance, making him an easy prey for subsequent addictions. He was already being poisoned by tobacco pushers due to the officers' not doing their duty to enforce MCL § 750.27, MSA § 28.216. In effect, when the officers arrived on the scene, he was already in the process of being poisoned and murdered by tobacco pushers. He was a crime victim of the poisoning of the worst sort, of his mind, not just his body. He desperately needed the aid of law enforcement against these mind-altering drug poisoners.

Instead of having aided Green, and the rest of society by long-before having commenced enforcement of MCL § 750.27, MSA § 28.216, the officers instead, in effect, aided and abetted the tobacco pushers' murder process against him. He needed aid, enforcement of the anti-poisoning law. Instead, he got beaten to death. This sad incident is another that helps prove:
"The war on drugs was only an illusion. . . . drug dealers . . . had bigger and better connections in the American government than [prevention-types] did." See Michael Levine (DEA agent 1965-1989), The Big White Lie (NY: Thunder's Mouth Press, 1993), p 124.
Instead of exposing the War on Drugs as an illusion, and helping win it, by enforcing the anti-gateway drug law, MCL § 750.27, MSA § 28.216, Budzyn and Nevers were part of the problem, refusing to do "the stitch in time that saves nine."

8. Entrapment Principles

It is a "natural and probable consequence" that the mass refusal to enforce the cocaine prevention act, MCL § 750.27, MSA § 28.216, leads to cocaine use such as Mr. Green did.

Michigan had tried to stop cocaine use from starting, by passing MCL § 750.27, MSA § 28.216, which serves as a "Cocaine Use Prevention Act," but it is never enforced. The officers lacked clean hands as they, accessories in law, to Green's cocaine use, had done nothing to enforce it. Said officers are thus "accessories during the fact," a legal concept defined on pages 14-15 of Black's Law Dictionary, 6th ed (St. Paul: West Pub Co, 1990). They actually or impliedly consent to cocaine use ("consent" is defined on page 305). It cannot be deemed other than "entrapment" (defined on page 532) when there is en masse refuse for now 90 years to enforce the cocaine use prevention law, when the "natural and probable consequence" (cocaine use) results, and they seek to divert attention off their own beam, personal, immoral, habitual misconduct of refusing to enforce the law, by their hypocritical finger-pointing at the mote Mr. Green.

MCL § 750.27, MSA § 28.216, if enforced, would prevent most cocaine use. However, the officers never filed any cases re violations of the law, which are rampant. Accordingly, the court should have dismissed their defense insofar as it relied on Green's cocaine use, as frivolous and moot, due to their non-enforcement of MCL § 750.27, MSA § 28.216, required as a condition precedent to allowing arrest of cocaine users.

The continuing pattern of prosecutorial misconduct, mass refusal to enforce the 1909 law, precludes prosecutions at the latter end of the cause and effect chain. By law, MCL § 750.478, MSA § 28.476, the government (police) must set an example of enforcing and obeying the laws. Case law to the same effect, e.g., Service v Dulles, 354 US 363; 77 S Ct 1152; 1 L Ed 2d 1403 (1957) and Glus v Eastern District Terminal, 359 US 231, 232; 79 S Ct 760, 762; 3 L Ed 2d 770, 772 (1959), makes clear that litigants cannot have committed wrongdoing at the starting point of a process. "[H]e who does the first wrong is answerable for all the consequent damages," Scott v Shephard, 96 Eng Rep 525, 526 (1773).

The officers cannot have the benefit of the provisions favorable to their side, while ignoring its conditions which they are to perform, obey, or enforce. Precedents show that no court should aid such a misconduct-committing party, e.g., BTC v Norton CMC, 25 F Supp 968, 969 (1938); and Buckman v HMA, 190 Or 154; 223 P2d 172, 175 (1950). "No one may take advantage of his own wrong," Stephenson v Golden, 279 Mich 710, 737; 276 NW 848 (1938). If cocaine use is occuring, the wrong is the officers (and their prosecutorial accomplices) pursuant to their now 90 year pattern of refusal to enforce the cocaine use prevention act, MCL § 750.27, MSA § 28.216. The officers should indeed have been prosecuted on additional charges, pursuant to MCL § 750.478, MSA § 28.476, for their protracted, brazen knowing, refusal to enforce the cocaine prevention act MCL § 750.27, MSA § 28.216.

9. The Decision Belonged To A Jury

The accused officers wanted the case against them dismissed without a jury being allowed to analyze the facts. The court refused, allowed a jury to rule. The jury entered convictions. As a court ruled in another death case (also blaming the victim for dying), letting the jury decide was the correct action:
"It was the province of the jury to determine whether the wrong of defendant caused or contributed to his [the victim's] death. The fact that he was afflicted with a disease which might have proved fatal would not justify the wrongful acts of defendant, nor constitute a defense in law. State v Smith, 73 Iowa, 35; 34 NW 597. Nor would ignorance on the part of defendant of the diseased physical condition of Stocum [Green] excuse his acts. State v Castello, 62 Iowa, 408; 17 NW 605." State v O'Brien, 81 Iowa 88; 46 NW 752, 753, supra.

"As was said by Justice Denman in the Towers Case, it would be 'laying down a dangerous precedent for the future' for us [judges] to hold as a conclusion of law that manslaughter could not be committed by [mere] fright, terror, or nervous shock [much less, by cigarettes' toxic chemicals!!]." Ex parte Heigho, 18 Idaho 566; 110 P 1031-1032, supra.

It would be laying down an dangerous precedent for the future to hold as a conclusion of law that murder cannot be committed by toxic chemicals or a beating of the type at issue, or by a pattern of nonenforcement of the law constituting "the only way" to prevent incidents of the type at bar.

10. Conclusion

Toxic chemicals are a "universal malice," directable at, ingestable by, anybody. They, with or without a beating, can disable or kill anybody, both (a) healthy people, and (b) victims taken as they come. So for the above reasons, the convictions pursuant to jury verdict should be upheld. In addition, all other culpable government officials involved in refusing to enforce the cigarette control law, MCL § 750.27, MSA § 28.216, should also be prosecuted. See our websites on the subject of genocide and extraditing officials.

11. Other Websites Specifically On This Case
Detroit News Article Human Rights Watch Michigan Supreme Court Decision, 456 Mich 77; 566 NW2d 229 (1997)Sixth Circuit Court Decision, 169 F3d 352

12. How To Prevent Future Such Incidents

Incidents of this type can be prevented. Prevention includes

(a) enforcing existing bans on cigarette ads targeting minorities leading to use of the gateway/starter drug that initiates users into the drug lifestyle,

(b) banning cigarette ads targeting area minorities as C.A.B.A.A.T. recommends,

(c) electing officials with a prevention focus on the gateway drug delivery agent (cigarettes),

(d) hiring appropriate police officers, and

(e) removing officials who refuse to enforce the cigarette control law, pursuant to quo warranto precedent, e.g., Foster v State of Kansas ex rel. Johnston, 112 US 205; 5 S Ct 97; 28 L Ed 696, 697 (10 Nov 1884) (the case of a prosecutor removed from office due to his blatant refusal to enforce a law he disagreed with).

A prevention focus (preventing incidents at the post-gateway stage) means preventing people getting hooked on the gateway drug. The gateway drug delivery agent, cigarettes, is already illegal by law, MCL § 750.27, MSA § 28.216. However, that law is never enforced, though the Governor and staff on paper are supportive:

Ex Order 1992-3 Law Support Letter # 1 Anti-Cigarette Smuggling Finding Law Support Letter # 2 Governor's Overview

We need a letter writing campaign that enlists the support of all types of varied interest groups—demanding that the law be enforced. Letters should be sent to the Governor, Attorney General, State Police Director, County Sheriffs and Prosecutors, and Police Chiefs, demanding enforcement of the prevention law. At our home page, we list a variety of subjects that can interest a wide range of potential letter writers. We may not be able to get the law enforced by ourselves, but with a wide range of activists all writing, we can prevail.

Ending cigarette advertising enticing people to start the drug lifestyle with the gateway drug (in cigarettes) is also needed, e.g., by notifying advertisers to cease and desist.

13. Postscript-Nevers Has Lung Cancer

"Ex-cop Nevers has lung cancer," reports a Detroit News headline, 21 July 1999, in an article by David Shepardson. Cigarettes and lung cancer, the cause-and-effect relationship has been known for about a century. "Nevers smoked three packs of cigarettes a day . . . for years and has suffered from emphysema for more than a decade."

Sadly, but foreseeably, the refusal to have enforced the Michigan cigarette control law, MCL § 750.27, MSA § 28.216, which led to Green's death, and blaming him as part of the victim-blaming syndrome, may foreseeably lead to Nevers' own death by yet another cigarette effect, lung cancer. This is another sad consequence of the ninety-one (91) year pattern of intentional refusal to enforce the law that our great-grandparents (better educated on the subject than people of today) intended to prevent such incidents.
Recommended Websites
Addiction: Known Since 1527 Cancer and Smoking: A 1925 Report Cigarette Hazard: The 1889 Legislature's Report Cigarettes' Illegal Toxic Chemicals
The Gateway Drug Delivery Agent Tobacco Induced Lung Cancer Medical Fact-Finding Principles Michigan's Cigarette Control Law MCL § 750.27, MSA § 28.216
Murder Precedents Need for Cigarette Billboard Control to Prevent Racial Targeting Need for Enforcement of Current Anti-Cigarette Advertising Law The Role of the
Gateway Drug in Alcoholism
The Role of the
Gateway Drug in Crime
The Role of the Gateway Drug in Other Drug Use Stop Building More Prisons Widespread Governmental Corruption and Racism Undermining Enforcement.

"Caught on Camera: Ten Shockingly Violent Police Assaults on Occupy Protesters" (Friday, 18 November 2011) gives examples of police violence.

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