Additionally, when the question of an activity’s “legality” and whether that activity is “legal” is raised, it sometimes creates confusion. Colloquially, when people ask whether something is “legal” or “illegal,” in most cases, they are really asking “can I do it without getting into trouble?” It’s certainly a fair question, but it’s a question with two possible levels of meaning. The confusion results primarily from the criminal-civil dichotomy in the American legal system.4 In a criminal context, whether an activity is “legal” means that someone cannot be subjected to criminal prosecution, the guilty penalty for which is typically a fine or imprisonment (and, possibly, some form of restitution), for engaging in that activity. Criminal cases are entirely about the “guilt” or “innocence” of a defendant. Criminal activity results from the violation of criminal laws (e.g., speeding prohibitions), which are generally pursued by government law enforcement agencies. In a sense then, committing a crime is a public offense. In a civil context, whether an activity is “legal” means that someone cannot be sued by another person, the liability for which is typically a judgment for monetary damages or injunctive relief, for engaging in that activity. Civil cases are not really about the “guilt” or “innocence” of a defendant. Civil liability results from the violation of another person’s individual rights (e.g., property rights), which are generally pursued in civil court by that person on his or her own behalf by filing a lawsuit. In a sense then, committing a civil violation is a private offense. Criminal violations and civil liability are independent, but can overlap and oftentimes result from the same activities. Thus, sometimes an activity that is a criminal offense can also create civil liability. Other times, an activity that is a criminal offense will create no civil liability. Likewise, sometimes an activity that creates civil liability will not constitute a criminal offense. For example, let’s say that Max takes Guy’s Lamborghini Gallardo without permission and damages it. Max may be guilty of committing the criminal offense of theft for which he may be given a fine or, more likely, imprisoned. Max may also have civil liability to Guy for the same conduct under a civil theory of conversion and negligence. To say that an activity is “legal” could mean either 1) that it is not a criminal offense; or 2) that it would create no civil liability. Or it could mean both. Accordingly, when considering whether an activity like rock, mineral, or fossil collecting is “legal,” the question should be considered and evaluated in both the criminal and civil contexts.
