We can all agree that stepping on a LEGO in bare feet is painful, but Congress is not enacting a LEGO ban. In the Rankin/Bass holiday classic Santa Claus is Coming to Town, the killjoy Burgermeister Meisterburger banned all toys after a slip and fall accident.
While there could be tort liability for leaving a toy on the stairs of a public office, this was not an assassination attempt. It was an accident. This was no reason to declare all toys “illegal, immoral, and unlawful.” Worse yet, the punishment was immediate arrest of anyone, even children, with a toy, and thrown them in the dungeon.
This…is not cool. A country predicated on freedom does not enact total bans lightly. Burgermeister Meisterburger had the all the charm of Nikita Khrushchev and Leonid Brezhnev having an illegitimate lovechild with low blood sugar. The story of Santa Claus is Coming to Town told during the height of the Cold War was a stark reminder that life in Eastern Block countries under Soviet Communism was the definition of “Un-fun.”
But would a total toy ban be Constitutional in the United States?
Specific kinds of toys have been banned by states and cities. For example, New York banned the importation, manufacturing, distribution, or sale of yo-yo waterball toys. N.Y. Gen. Bus. Law § 399-e. These toys are a type of yo-yo that is a ball made of a rubber-like material that is filled with liquid. While not stated in any legislative history, it is easy to imagine someone freezing one of these yo yo balls and using it as a weapon. The state of New York took these yo yo’s serious enough that any sale of one is a $1,000 fine.
Many states have prohibited the possession of toy guns that look like real guns. These laws are Constitutional, because there is a reasonable relationship between the public welfare and the act proscribed. People v. Judiz, 381 N.Y.S.2d 467, 468, (1976). We don’t want people having toy guns, because there were incidents of people attempting to commit crimes with these realistic toys and horrible incidents of police officers mistaking these toys as real guns.
New York’s ban on nunchakus was held Unconstitutional on the grounds it violated the 2nd Amendment. Moreover, the court applied intermediate scrutiny because the law banned involved 2nd Amendments rights. Maloney v. Singas, 2018 U.S. Dist. LEXIS 211546, at *23 (E.D.N.Y. Dec. 14, 2018). Furthermore, the Court held that nunchakus were not inherently dangerous. By way of comparison, toys are not inherently dangerous and the same logic would apply to toys, with the exception of the 2nd Amendment rights.
The issue for the Burgermeister Meisterburger’s decree is whether such a ban could pass the “Rational-Basis Test,” which asks whether a law furthers a legitimate government interest. Bd. of Trs. v. Fox, 492 U.S. 469, 471 (1989). The goal to avoid people from tripping on stairs is a legitimate government interest, but that is an issue of negligence, not one of a total toy ban. Moreover, the Burgermeister Meisterburger did not ban trip hazards on steps, but all toys. Leaving banana peels, rakes, or animal waste on steps would all be trip hazards, which the Burgermeister Meisterburger ignored.
The toy ban is silent on the definition of a “toy.” A statute is not vague when the meaning of words can be fairly determined by judges, common, dictionaries, or the word themselves. See, Bowers v. State, 283 Md. 115, 125 (1978).
A statute can be impermissibly vague if it 1) fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits; or 2) if it authorizes or even encourages arbitrary and discriminatory enforcement. Hill v. Colorado, 530 U.S. 703, 732 (2000).
The Burgermeister Meisterburger led raids on his citizens’ homes to confiscate toys based solely on his personal opinion of what was a toy. This is the textbook definition of arbitrary and discriminatory conduct. Reasoned people could find themselves thinking anything that could be played with is thus a toy, meaning brooms or towels could land them in the dungeon. Moreover, alphabet block letters could be viewed as either a toy or educational tool that could result in people living in fear of prosecution.
The 4th Amendment prohibits government from conducting unreasonable searches and requires probable cause for search warrants. The Burgermeister Meisterburger was personally leading his state police to search homes for toys. There was no probable cause, other than the fact a child lived in the house. This would be profiling at its worst, assuming all children are criminals because they might have a toy.
The 8th Amendment prohibits cruel and unusual punishment. We also value that punishments for criminal actions must be proportional to the crime. Having a rubber ducky should not result in someone being thrown in a dungeon. Not a prison, a dungeon. Worse yet, the Burgermeister Meisterburger was willing to throw children in his dungeon for the act of playing with toys. What next, putting children in cages if their parents commit a misdemeanor?
The Burgermeister Meisterburger’s decree did not have a valid government interest, was arbitrary in its application, was used to conduct illegal searches, and its application resulted in cruel and unusual punishment. There is no way a total toy ban would be Constitutional.
And for the record, children leaving doors unlocked for Kris Kringle to leave them toys made him an invitee, not a trespasser.